Lectures introductory to the [609397]

Cătălin -Silviu Săraru

European Administrative
Space – recent challenges and
evolution prospects

European Administrative Space – recent challenges
and evolution prospects

Author : Cătălin -Silviu Săraru

Activity: Cătălin -Silviu Săraru, PhD, is Associate Professor at the Law Depart-
ment of Bucharest University of Economic Stud ies, where he specializes in Eu-
ropean business law and Comparative administrative law. He is Arbitrator at the
Court of International Commercial Arbitration (Romania); Lawyer i n the Bucha-
rest Bar Association; Editor in Chief of the Juridical Tribune – Tribuna Juridica
Journal (indexed in Thomson Reuters) and Perspectives of Business Law Journal;
member in the Editorial Board of several scientific journals : International Law
Research (ILR) – Toronto, Canada, „Dreptul” , „Acta Universitatis Danubius.
Juridica” , „Reflecții Academice” ; President of the Society of Juridi cal and Ad-
ministrative Sciences and member in Société de législation comparée , Union of
Jurists of Romania , Institute of Administrative Sciences "Paul Negulescu" .

Publications: editor of the book „ Studies of Business Law – Recent Developments
and Perspectives ” published by Peter Lang International Academic Publishers in
2013; 8 books as sole author among which: „Drept administrativ. Probleme fun-
damentale ale dreptului public” („Administrative law. Fu ndamental issues of
public law”) , C.H. Beck Publishing House, Bucharest, 2016, „Legea contenci-
osului administrativ nr. 554/2004. Examen critic al Deciziilor Curtii Constitu-
tionale ”(„Administrative Litigation Law no. 554/2004. Critical examination of
the Co nstitutional Court Decisions”) , C.H. Beck Publishing House, Bucharest ,
2015, „Contractele administrative. Reglementare, doctrină, jurispru-
dență” („Administrative agreements. Regulatory, doctrine, jurisprudence”) , C.H.
Beck Publishing House, Bucharest , 2009; 2 books as co -author among which:
„Drept administrativ european” ( "European Administrative Law" ), Lumina Lex
Publishing House , Bucharest, 2005; author of over 100 articles published in jour-
nals: Juridical Tribune – Tribuna Juridica, Transylvanian Review of Administra-
tive Sciences, Acta Juridica Hungarica, Dreptul, Juridical Current , Acta Univer-
sitatis Danubius. Juridica, Revista de Drept Public, Pandectele române, Curierul
Judiciar, Notebooks of international law , Tribuna Economică, Economie și Ad-
ministrație locală etc.

Prizes: "Anibal Teodorescu" Prize awarded by the Union of Jurists of Romania
in 2014 for the work „Cartea de contracte administrative – modele, comentarii,
explicații” („The Book of administrative contracts – models, comments, explana-
tions ”), C.H. Beck Publishing House, Bucharest, 2013 .

Cătălin -Silviu Săraru

European Administrative Space – recent
challenges and evolution prospects

Bucharest 2017

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Table of C ontents

Chapter I. The notions of European Spac e, European Public Space and
Administrative Space ………………………….. ………………………….. …………………… 9
Section 1. Affiliation to the Europ ean Administrative Space …………….. 9
Section 2. The European Administrative Space component of the
European Public Space ………………………….. ………………………….. ……… 10

Chapter II. European administrative convergences ………………………….. ….. 15
Section 1. Factors that can play a role in European administrative
convergence ………………………….. ………………………….. …………………….. 16
§1. The Treaties of the European Union and the secondary
legislation implementing them a re part of the national laws of the
Member States ………………………….. ………………………….. …………………. 17
§2. Constant coopera tion between Member State officials and
between them and those of the European Union ………………………….. .. 18
§3. Role of the European Court of Justice in the formation of
common admini strative principle s in the European Union ……………… 18
§4. "Contamination" of national laws by the principles of
European Union law ………………………….. ………………………….. …………. 19
§5. Europe an dimension on the study of public administration ……. 20
Section 2. The ways in which European administrative convergence
can be achieved ………………………….. ………………………….. ………………… 21
Section 3. Trends of harmonization in institutional and decision –
making between the Member States of the European Union …………… 22
§1. Re-launching of local autonomy and multiplying deci sion-
making and coordinati on structures ………………………….. …………………. 22
§2. The outsourcing of public activities and its limits in the
European comparative law ………………………….. ………………………….. … 24
2.1. Introductory considerations ………………………….. ………………. 24
2.2. The limits of the externalization of public activities in
Great Britain ………………………….. ………………………….. ……………………. 26
2.3. The limits of the externalization of public activities in
France ………………………….. ………………………….. ………………………….. … 29
2.4. The limits of the externalization of public activities in
Germany ………………………….. ………………………….. …………………………. 31
2.5. The limits of the externalization of public activities in
Spain ………………………….. ………………………….. ………………………….. ….. 32

6 Table of Contents

2.6. The limits of the externalization of p ublic activities in
Italy ………………………….. ………………………….. ………………………….. ……. 34
2.7. Conclusions. The convergence limits regarding the
externalization of the public activities in the Member States of
the European Unio n ………………………….. ………………………….. ………….. 37
§3. Administrative litigation systems in the Member States of the
European Union ………………………….. ………………………….. ……………….. 38
3.1. Introductory consideration s ………………………….. ……………….. 38
3.2. States with administrative jurisdictions who have the State
Council on top, administra tive body with consultative and judicial
role (the French system) ………………………….. ………………………….. ……. 39
3.3. States with administrative jurisdictions completely separated
from the active an d consultative administrations
(the German system) ………………………….. ………………………….. …………. 41
3.4. States with administrative jurisdictions included in the
judicial system ………………………….. ………………………….. …………………. 42
3.5. States with no administrative jurisdiction (English s ystem) … 43
3.6. Conclusions on Administrative Litigation Systems in the
Member States of the Eu ropean Union ………………………….. …………….. 45
§4. Evolutio n of the level of convergence in the European
administrative systems ………………………….. ………………………….. ………. 46

Chapter III . Elements of the European Administrative Space in the
primary law of the European Union ………………………….. ………………………… 49
Section 1. Elements of the European Administrative Space in the
primary legislation of the European Union ………………………….. ………. 49
§1. Premises of adm inistrative cooperation ………………………….. …… 49
§2. Approximation of administrative laws ………………………….. ……. 49
§3. Removal of administrative barriers ………………………….. ………… 50
§4. Compromise clause in public law contracts …………………………. 51
§5. Right to good administration ………………………….. …………………. 51
§6. Transparency of administrative procedures in the institutions
of the European Union ………………………….. ………………………….. ………. 53
§7. Right to compensation for damage caused by the institutions
and agents of the Eur opean Union ………………………….. …………………… 53
§8. Language of communication with the European Union
institutions ………………………….. ………………………….. ………………………. 54
§9. Juridica l verification of administrative decisions ………………….. 54
§10. Equal treatment of citizens in relation with the
administration ………………………….. ………………………….. ………………….. 55
§11. Right of petition ………………………….. ………………………….. …….. 55
§12. Inquiry Commission for maladministration set up by
European Parliament ………………………….. ………………………….. ………… 56

Table of Contents 7

§13. European M ediator. Good and bad administration ………………. 57
§14. Application of administrative sanctions ………………………….. … 61

Chapter IV. Components of the Europea n Administrative Space in the
seconda ry legislation of the European Union ………………………….. ……………. 63
Section 1. The legal means of action of the European Union
administration ………………………….. ………………………….. ………………….. 63
§1. Unilateral administrative acts in the European Union law.
Principles underlying the adoption and application of
administrative acts ………………………….. ………………………….. ……………. 63
§2. Adminis trative contracts in the European Union law …………….. 68
2.1. Evolution of EU legislation on of public procurement
contracts and concessions ………………………….. ………………………….. … 68
2.2. Considerations about the purpose of EU regulations in the
field of administrative contracts ………………………….. ……………………… 71
2.3. The fundamental principles drawn from the Court of Justice
of the European Union in the field of public procurement and
concessions ………………………….. ………………………….. ……………………… 75
2.3.1. Preliminary considerations ………………………….. …………… 75
2.3.2. Fundamental principles applicable in the award of public
procurement cont racts and concessions drawn from the Court of
Justice of the European Union ………………………….. ………………………… 78
2.3.3. Principles for the execution of public procurement
contracts and concession contra cts drawn from the Court of
Justice of the European Union ………………………….. ………………………… 87
2.3.4. Fundamental princ iples drawn from the Court of Justice
of the European Union applie d in the review procedures to the
award of public procurement and concession contracts ………………….. 88
2.4. Conclus ions. Harmonization of the EU Member States
procedures in the field of awarding and executing of the public
contracts ………………………….. ………………………….. ………………………….. 91
Section 2. Means of staff: the public function in the EU institution s.
Organization principles ………………………….. ………………………….. …….. 93
§1. The recruitment and promotion of European Union officials …. 95
§2. Principles of public fu nction in the institutions of the
European Union ………………………….. ………………………….. ……………….. 95
Section 3. Material means. The European Groupings of Terr itorial
Cooperation (EGTC). Case study – EGTC developed by
administrative st ructures in Romania and Hungary ……………………….. 96
§1. General considerations about the European Groupings of
Territorial Cooperation (EGTC) ………………………….. ……………………… 96
§2. Establishment and functioning of the EGTC ………………………… 97

8 Table of Contents

§3. Contribution of EGTCs established by municipalities from
Romania and Hunga ry to sustainable regional development …………. 102
§4. Bánát – Triplex Confinium Limited Liability EGTC ……………. 103
§5. Gate to Europe Limited Liability EGTC ………………………….. .. 106
§6. Analytical presentation of EGTC Bánát -Triplex Confinium
and Gate to Europe EGTC ………………………….. ………………………….. . 107
§7. Conclusions ………………………….. ………………………….. ………….. 108

Chapter V. General principles of European Administrative Law ………… 110
Section 1. Introductory explanations ………………………….. ……………… 110
Section 2. Trust and predictability ………………………….. …………………. 112
Section 3. Openness and transparency ………………………….. …………… 120
Section 4. Tort liability of the Europea n Union administration ……… 124
Section 5. Efficiency and effectiveness ………………………….. ………….. 127

Chapter VI . Integration o f Romanian authorities and institutions into
the Europea n Union's system of values ………………………….. …………………. 130

Fundamental bibliography ………………………….. ………………………….. ……….. 133

Map of the Europe an Union………………………………………………..142

Chapter I
The notions of European Space, European Public Space
and European Administrative Space

Section 1. Affiliation to the European Administrative Space

Underlying any new beginning is a system of values. The question is to
discover the values that allow us to talk today about a country belonging to the
European space.
Professor Andrei Marga believes that to speak of belonging to the Euro-
pean Space must distinguish: Europe's geographic : placing between the Atlantic
and the Urals, which are devoted to the continent's geographical boundaries; his-
torical membership in Europe : participation in movements that have given the
continent's cultural and institutional forms, from creating polis, through contact
with th e Judeo -Christian tradition, modern revolutions in knowledge, economics
and law, to defend the foundations of a free society; institutional membership
in Europe : the embodiment of an open society organizations and specific legis-
lation; cultural affiliation : cultivating an attitude in knowledge and practical life
characterized by trust factual analysis and cultivating critical thinking. The same
author believes that if distinctions are made honestly, then you have to admit that,
in light of European unificat ion process started after the war's geographic and
membership historic decide not a European, which is now in question (see for
example the case of Turkey which perspective can become an EU member). Ge-
ography and history are indispensable conditions, but E uropean unification, a
process primarily by institutional and cultural affiliation is examined considering
European institutions and culture. Situated in geography and European history
does not automatically generate a cultural Europeanness, as a cultural Euro-
peanism can be found in countries that do not belong strictly geographically and
historically, from Europe1.
European culture contains a culture of efficient administration supported
a culture of law characterized by personalism, legalism and formalism . Walter
Hallstein considers that EEC is a phenomenon in three aspects of law: it is a cre-
ation of law, it is a source of law and it is the order of law2.

1 Andrei Marga, Filosofia unificării europene , Publisher Foundation for European Studies, Cluj
Napoca, 2001, p. 26.
2 Walter Hallstein, Gemeinschaftsrecht und nationales Recht in der europäischen
Wirtschaftsgemeinschaft , 1966, p. 542, cited by Andrei Marga, op. cit. (Filosofia unificării
europene) , 2001, p. 174.

10 Cătălin -Silviu Săraru

In the European culture the individual is subject, reference and scope of
legal regulations. Europea n civilization is essentially material embodiments of
European culture.
H. R. Patapievici believes that articulate the idea of Europe was set up as
a continental territory from time side and not the side from geography -as hap-
pened in a completely natural m ode in the case of Africa or the Americas. "Eu-
rope is the mood that was set up by mobilization techniques of design time. You
recognize the true European spirit after the capacity of the human enterprise to fit
of the time after the talent to create over t ime and submit the time by virtue of
maintaining what has been built by talent to make things take in time. Europe
begins where technique is used to mobilize the time, to master the space3… "
Claude Delmas talks about a "European conscience" which becom es op-
erational once it enters the interest of European realities about everyday concerns
of the masses thus exceeding the philosophical plan and political options4.

Section 2. The European Administrative Space component of the Eu-
ropean Public Space

After François Guizot, European civilization is characterized by several
features that distinguish it from all other – justice, legality, public space and free-
dom5. Through public space Guizot understand the existence of general interests,
ideas public, briefly of society.
European public space is under construction in terms of discovery and
resorts internal legitimacy to govern. The concept of "European Public Space",
yet elusive theoretical in terminology of the European integration will encompass
and describe in a systemic manner, mechanisms, processes and complex phenom-
ena that govern the development of public sectors and European administrations,
highlighting the connections and the determinations of an administrative nature ,
economic, social or political.
Today it is noted that at European Union level, wants to create a public
space allowing legitimizing transnational European institutions and the founding
of a European collective identity. But certainly the conceptual definition of public
space must be rev ealed in the light of the political unification of Europe, the po-
litical will, having a decisive role.
The conditions for the existence a European Public Space can be summa-
rized as:

3 Horia -Roman Patapievici, Omul recent , 3rd edition, Humanitas Publishing House, Bucharest,
2004, pp. 62 -64.
4 Claude Delmas, Histoire de la civilisation européenne , Presses universitaires de France, 1969,
Paris, p. 6.
5 François Guizot, Istoria civilizației în Europa. De la căderea Imperiului Roman până la Revo-
luția Franceză , Humanitas, Bucharest, 2000, p. 38.

European Administrative Space 11

 existence of a Union based on law
 existence of Community institutions func tioning of a democratic man-
ner
 existence of an organized debate in public life based on the existence
of means allowing all EU citizens to express themselves publicly6.
The ways concerning the public debate and obtaining of the European
public solidarity a re yet to be invented7.
 existence of the frame allowing the concepts contoured after the dis-
cussions from public life to be enacted by public law.
The framework of the European public debate and citizen initiatives is
designed currently in the article 11 o f the Treaty on European Union. The princi-
ple of participatory democracy requires that EU institutions give citizens and rep-
resentative associations the opportunity to make their views known and to ex-
change views publicly in all areas of Union action. Unio n institutions are obliged
to maintain an open, transparent and regular dialogue with representative associ-
ations and civil society. In order to ensure consistency and transparency of the
actions of the Union, the Commission should carry out broad consulta tions with
stakeholders. At the initiative of at least one million EU citizens from a significant
number of Member States, the Commission may be invited to make an appropri-
ate proposal on matters where citizens consider that it is necessary a legal act of
the Union, in order to implement the treaties.
The European public law has the role to include the concepts contoured
in the public debate. The Public law covering the constitutional law and the ad-
ministrative law, remains the reference for European Public Space, some authors
revealing true convergence between European administrations based on elements
of public law: the European political systems have remained faithful to parlia-
mentarism, the existence of parliamentary majority based on the discipline of
vote, the practice exercised at national referendum, the decentralization, the ex-
istence of an administration of "career" and, especially, the European model of
constitutional review8.

6 Définition de notions de la sphère de la Société civile 2002, par Jean Claude Boual, Paris / Horst
Grützke, Berlin, Forum permanent de la Société civile européenne, www.europa -jetz.org , last
consultation on 01/10/2016.
7 Dominique Wolton highlight recently: the French, for example, become aware of press, radio
and television, of the latest news and de bates concerning their country and the debate between
supporters and opponents of European integration is not a European debate but a mosaic of
debates in the bosom of each European countries. In addition, major European solidarity
remains to be invented: the time when Northern Italy make fuss in supporting the efforts of
Southern Italy to overcome backwardness, or the exclusions undermine unity of nations, a
political Europe destined only economic impetus to sanction most favored European regions
can expos e the worst cramping corporate and nationalist – see Jean -Michel Besnier, Conceptele
umanității. O istorie a ideilor , Lider Publishing House, Bucharest, 1996.
8 Florin Bucur Vasilescu, Constituționalitate și constituționalism , National Publishing House,
1999, Bucharest, p. 14.

12 Cătălin -Silviu Săraru

The chances of unifying transnational public law are maximized in case
of nearby communities of states that demonstrates in general the same economic
structure, social, cultural and political. These conditions are increasingly present
within the European Union, it is legitimate therefore the hope that the move to-
wards a "ius commune" over Europe can develop as well also in the public law
domain9.
The European Communities were created to join efforts towards a first
European economic space. As history shows, the European Communities were
involved first in an economic market c ommon, evolving then in the creation of
the European Union institution which is not driven only by economic interests,
but also by the desire to build social ties and political ties between European na-
tions (as he had desired and signatories original Treat y of Rome). Today the Eu-
ropean Union is not only a market for goods and services. Thus, the Treaty on the
Functioning of the European Union (TFEU) in Title V talks about "Space of
Freedom, Security and Justice", and some doctrinal works speak of a "Europ ean
social space"10. Lately doctrine speaks now about a "European Administrative
Space". This is an exclusive creation of the doctrine, the notion is no such in
legislation.
Reality shows that it is very difficult to talk in Europe about one way or
model of public administration. Concerning the development of the European
concept of public administration, Rutgers and Schreurs notes that public admin-
istration is still at the primary stage of conceptualizations and national ap-
proaches. In addition, there is al most no study about European public administra-
tion. What kind of government is addressed to the European area remains to be
discovered11. The notion of the European Administrative Space is more a creation
of doctrine based on certain principles revealed by primary and secondary EU
legislation.
The public administrations of EU Member States although they have a
very old structure, they have continuously adapted to modern conditions, includ-
ing joining the European Union. The constant contact between civil ser vants from
EU Member States and the Commission, the requirement to develop and imple-
ment the acquis communautaire at equivalent standards of reliability across the
Union, the need for a system of administrative justice unique to Europe and shar-
ing of princ iples and values of public administration led to some convergence

9 See in this regard Ioan Alexandru, Drept adminis trativ comparat , Lumina Lex Publishing
House, Bucharest, 2000 , p. 14.
10 See Andrei Popescu, Nicolae Voiculescu, Dreptul social European , „Fundația România de
Mâine” Publishing House, Bucharest, 2003, p. 209 -213.
11 Rutgers, Mark and Petra Schreurs, Briefl y Noted from Europe: Discovering the European Idea
of Public Administration , „Administrative Theory and Praxis” vol 22, No. 3, 2000, p. 621.

European Administrative Space 13

between the national administrations. This was described as the "European Ad-
ministrative Space"12.
The European Administrative Space can be understood broadly as a space
of European public ad ministration and may be the subject of administrative sci-
ence, a multidisciplinary science, in its concerns entered the classical concept of
Staatswissenschaften elements: public law, political science and public econo-
mies13. European structure can be analy zed from the perspective of these areas
that are studied in different proportions also in the national university curricula14.
In a narrow sense we can speak of administrative law governing this European
space15.
The notion of European administrative space c an be thought modeled on
European economic and social space, being connected with the legal system -wide
cooperation. Traditionally, a common administrative space is possible when a set
of legal principles, rules and regulations are respected uniformly in a territory
covered by a national constitution. Thus we can speak of of each sovereign state
administrative law. The issue a law on public administration which fits all sover-
eign states that joined the EU was debated intensely since the establishment of
the European Community, but without reaching a consensus16.
EU Member States' legal systems are in a constant process of approxima-
tion in many different fields, under the guidance of Community legislation
through the legislative work of the Community instituti ons and to the European
Court of Justice. The EC legal concepts are introduced into national systems by
directly applicable regulations or directives that determine adapt their legislation
to EU specifics. These regulations can have a direct impact on Memb er States'
administrative systems and can lead to significant changes in the applicable legal
principles in public administration.
European Court of Justice can generate general principles governing a
European administrative law. Jürgen Schwarze shows that in many cases the in-
terpretation of legislative acts of the European Community, by the European

12 SIGMA Papers, no. 23, Preparing Public Administration for the European Administrative
Space , OECD, Paris, 1998.
13 Wolfgang Drechsler, On the Viability of the Concept of Staatswissenschaften , „European
Journal of Law and Economics” 12, 2001, pp. 105 -111.
14 Sciences that studies related to public administration at national level are shown in the analysis
made by Ber nadette Connaughton (Deparment of Government and Society, University of
Limerik, Ireland) and Tiina Randma (Departament of Public Administration, University of
Tartu, Estonia). They analyze the commonalities and differences in curricula of public
administr ation in European countries, members of the EU or not in the paper Teaching and
Principles of Public Administration: is it possible to achieve a common European perspective? ,
www. unpan.org/europe -analyticalreport -untc.asp
15 SIGMA Paper no. 27, European P rinciples for Public Administration , OECD, 1999, Paris:
SIGMA -OECD; http://oecd/org/puma/sigmaweb (last consultation on 01/10/2016) treats the
perspective of administrative law governing the European Administrative Space.
16 See SIGMA Paper no. 27, op. cit ., as well as Jürgen Schwarze, European Administrative Law,
Office for official publications of the European communities , Sweet and Maxwell, 1992, p. 12.

14 Cătălin -Silviu Săraru

Court leads to changes in the way principles of administrative law are applied in
an EU Member State17.
We are thus witnessing to the Europeanization of adminis trative law.

17 Jürgen Schwarze, Administrative Law under European Influence: On the Convergence of the
Administrat ive Laws of the EU Member States , Baden -Baden, Sweet si Maxwell, Londra, 1996.

Chapter II
European administrative convergences

The convergence involves the reducing of the disparities between admin-
istrative systems18, following identification of a portfolio of common features in
the various European governments.
The convergence is not proposed as a matter of power and imposing a
particular model. In this respect, American authors Woolcock and Pritchett con-
clude that in framework of development policies should be very careful when we
use the assumption of certain rules or lessons with broad application that can be
applied to public sector reform, project management or provision of services19.
They underline the often dysfunctional mentality regarding "best practice" that a
functional pra ctice in a part of the world is immediately made public and recom-
mended as a model to be followed in other parts of the world.
An European model of public administration is currently in the stage of
ideal. There is no an administration type to which we ca n refer to as standard20.
According prof. Christoph Reichard of the University of Potsdam forces
leading to convergence between national administrations in the Union are: the
unified economic space which is crucial for the emergence of common adminis-
trative structures; a common legal structure developed by the Court of Justice;
the constant interaction between the bureaucrats and politicians; a clear doctrine
in most European countries in favor of a public action of better quality, as well
as for administrat ive reform21. However, a "European public administration" does
not exist: although manifests a unique power in favor of integration, there are
many differences of law, administrative and budgetary and fiscal policies; social
and governance policies vary con siderably and expectations of citizens are not
standardized.
There are a limited number of systematic studies about "European ad-
ministrative convergence". The concept is found mostly in public law studies and
reports OECD / SIGMA related to the context of Union enlargement. It is noted,

18 Johan P. Olsen, Towards a European Administrative Space? , Online ARENA Working Papers,
WP 02/26; Centre for European Studies; University of Oslo; www.arena.uio.no/, last
consultation on 01/10/2016.
19 Michael Woolcock, Lant Pritchett, Solutions when the solutions is the Problem: Arraying the
Disarray in Development , Washington D. C., Center for Global Development Paper 10, 2002,
authors cited by Francis Fukuyama, Construcția statelor. Ordinea mondială în secolul XXI ,
Antet XX Press Publishing House, 2004, p. 90.
20 See in this regard Ioan Alexandru, Administrația publică. Teorii. Realități. Perspective , 2nd
edition, Lumina Lex Publishing House, Bucharest, 2001, p. 605.
21 Christoph Reichard, presentation at the annual conference of the European Group for Public
Administration, Potsdam, 2002, www.uni -potsdam.de/egpa2002/registration/Form%20A1.pdf

16 Cătălin -Silviu Săraru

however, that there is no consensus in the literature about the existence of con-
vergence vis -a-vis a common European model.
Nizzo, along with other authors, believes that there is an ESA, in which
the space allocated for con vergence to exceed that of divergence22. Jürgen
Schwarze believes that national administrative structures seem to manifest itself
in particular resistance to European influence23. The study undertaken by the lat-
ter author on public space of 12 EU member stat es reveal substantial structural
differences between the systems of administrative law and he provides that the
national administrative order not to lose features and dominant role in the near
future.
The documents SIGMA notes, however, that the forces dri ving toward
convergence lately gained speed and power. Increasingly more diversity of view-
points is placed under European administrative standards. Johan P. Olsen notes
that, although there is no acquis communautaire to regulate the "European public
admini stration" (treaties do not prescribe a European administrative model), there
was a unofficial (non -formalized) acquis24. Thus Member States, despite having
different legal traditions and different systems of governance, have developed a
common body of doctr ine and share the same principles of administrative law
and standards of good practice and the need to deploy unified and effective EU
law. An example of this is the European Ombudsman institution which through
collaborative network with national ombudsmen has created a trend in European
administration on administrative openness and transparency, the development of
good administration and respect for human rights.
We see today that although the term and concept of law of government
differ from one national system to another, it is possible an agreement on a com-
mon definition of administrative law, as a set of principles and rules that relate to
organization and management of public administration, and relations between
governments and citizens25.

Section 1. Factors that can play a role in European administrative
convergence

The factors that may play a role in European administrative convergence
underlined more often in the doctrine are: EU treaties and secondary legislation

22 C. Nizzo, National public administrations and European integration . Paris: OECD/Sigma,
2001, http://www1.OECD.org/puma/sigmaweb , last consultation on 01/10/2016.
23 Jürgen Schwarze, The Europeanization of national administrative law în Jürgen Schwarze
(ed.): op. cit. (Administrative Law under European Influence…), 1996, pp . 789 -840.
24 Johan P. Olsen, op. cit. (Towards a European Administrative Space? ).
25 J. Ziller, Administrations comparees: les systemes politico -administratifs de l’Europe des
Douze , Montchrestien, Paris, 1993.

European Administrative Space 17

implementing them are part of the national laws of the Member States; the con-
stant cooperation between the officials of the Member States and between them
and those of the European Union; the role of the European Court of Justice in the
formation of common administrative principles in the European Union; the "con-
tamination" of national laws by the principles of European Union law; the Euro-
pean dimension to the study of public administration.

§1. The Treaties of the European Union and the secondary legislation
implementing them are part of the national laws of the Member States

EU treaties and secondary legislation implementing them are part of the
national laws of the Member States. Public administrations and national courts
are required to apply these Treaties and related secondary legisl ation to the same
extent as they apply their own laws. Thus, although each Member State has the
freedom to decide on the ways in which the Treaties and the secondary legislation
of the EU can be obtained, common understanding and principles have been de-
veloped within the Union. The situation is less visible in the administrative -or-
ganizational arrangements and structures, as there is a great diversity between
Member States' forms and degrees of decentralization. However, the legislative
work of the European Institutions is a major source of common European admin-
istrative autonomy for Member States, their courts of law and citizens.
Jürgen Schwarze points out that Community law (now EU law) is pri-
marily formed of rules of administrative law, particularly econ omic and public
administration. This is because it concerns, on the one hand, the organization and
functioning of the community institutions, the acts issued by them and their con-
formity with the basic treaties of the community and the derived regulations26,
and on the other hand, the mediation role of the national public administrations
in the implementation of the community policies27. From this perspective, in the
view of the same author, the term "community of law" used by the European
Court of Justice to designate European communities could have the meaning of
"community of administrative law".
The European Union's administrative legislation has a strong sectoral
character and is grouped into a number of areas: free competition in the internal
market, tel ecommunications, environment, agriculture, industrial policy, science

26 Jürgen . Schwarze, Droit administratif euro péen , Office des Publications officielles des
communautés européennes, Bruylant, vol. I, 1994, p. 8.
27 so European administrative law addresses largely aspects relating to the role of mediator of na-
tional public administrations, ensuring the free competiti on of firms in the European Union
territory, thus stimulating them to meet the standards specific to the Member States and provi-
ding support to enterprises, authorized and monitored support by the European Union, see
OECD, 1999. European Principles for Pub lic Administration . SIGMA Paper No. 27. Paris:
SIGMA -OECD.

18 Cătălin -Silviu Săraru

and research, customs control, etc. This important administrative law is the "ac-
quis communautaire" whose level of compatibility with the relevant rules in the
candidate countries is imp osed by the European Commission in the accession ne-
gotiation process.

§2. Constant cooperation between Member State officials and be-
tween them and those of the European Union

Another source of administrative rapprochement is the constant contact
between the officials of the Member States and between them and those of the
European Union. Intergovernmental relations contribute to building a common
vision on how to implement EU policies at national level and to exchange bene-
ficial positive initiatives to ach ieve the results of these policies. Inter -administra-
tive cooperation is a concept stipulated and promoted by the Maastricht Treaty
(Article 209 A). Co -operation and exchange of information create formal pres-
sures to reach common standards and ensure that t he results of the Treaties and
the secondary legislation of the European Commission are achieved. Intergov-
ernmental relations contribute to the promotion of a set of common administrative
management principles, which will then lead to the implementation of a common
model for the behavior of civil servants in the Union. This effect is mainly due to
the fact that the officials involved are able to develop a stable professional career
in their public services.
On the other hand, the Union can support the effor ts made by Member
States to improve their administrative capacity in the implementation of Union
law. This can mainly consist in facilitating the exchange of information, by offi-
cials, and in supporting training programs.
The European Council has recommend ed Member States and the Com-
mission to develop administrative cooperation for the implementation of Com-
munity legislation at internal level28.

§3. Role of the European Court of Justice in the formation of com-
mon administrative principles in the European U nion

The European Court of Justice has the most important role in shaping
common administrative principles in the European Union. While secondary leg-
islation has a rather sectoral influence, the rulings of the European Court of Jus-
tice lead to the reflect ion and development of general administrative principles,
even if they are established on a case -by-case basis. In fact, the case -law of the
European Court of Justice is the main source of non -sectoral administrative law

28 see Resolution of 16 June 1994 – O.J.C.C. 179, 01/07/1994, p. 1 -3.

European Administrative Space 19

in the European Union. The Court de fines its own administrative principles or
applies principles created and defined by the National Administrative Courts of
the Member States. The storage of the latter defines general administrative prin-
ciples applicable to all Member States and their inha bitants within the European
Union legislative framework.
The starting point for Community administrative case law is the Algera
judgment of 12 July 1957 in which the European Court of Justice ruled that the
lack of basic treaties in order to resolve a liti gation of an administrative nature
does not prevent its being settled, in view of the legislation, doctrine and juris-
prudence of the Member States. Starting from a double restriction – the absence
of a Community norm and the prohibition of denial of justic e29 – the Court, in its
rich jurisprudence, has laid down principles which all Member States must re-
spect. The following can be mentioned: the principle of administration by law,
the principle of proportionality, legal certainty, the protection of legitimat e
claims, non -discrimination, the right to a hearing in the decision -making proce-
dures of the administration, interim reports, equal access to administrative courts,
public administration. However, it is often noted that the European Court did not
provide a Community or national legal basis for principles such as trust, legal
certainty or proportionality. On the contrary, it has assumed their authenticity or
established their special characteristics as principles of Community law in the
shortest formulas.

§4. "Contamination" of national laws by the principles of European
Union law

Jurgen Schwarze highlights a phenomenon of interpenetration of Euro-
pean Union law into national systems. This is that it would be very difficult to
use, within a given state, dif ferent standards and practices of application for na-
tional legislation and European Community law30. Gradually, national institu-
tions app lied the same standards and used the same practices for both. This leads
to the idea of a common public administration law developed in the EU Member
States. This kind of "contamination" of national legislation by EU law principles
also contributes to th e establishment of a European Administrative Space.
It should be stressed that we can not in principle dissociate the European
administrative law into an administrative law applicable only to the EU institu-
tions and an externally -administered administrativ e law applicable to the admin-
istrative institutions of the member countries. The European public debate creates

29 Referring to the Court's duty to avoid denial of justice clearly demonstrates the influence of
French legal thinking. The we ll-known prohibition of the refusal of justice in Article 4 of the
Civil Code states: „ Le juge qui refusera de jouer, sous pretexte du silence, de l’insuffisance de
la loi, pourra etre poursuivi comme coupable de deni de justice ”.
30 Jürgen Schwarze, op. cit. (Administrative Law under European Influence…), 1996.

20 Cătălin -Silviu Săraru

currents and opinions across the Union. Thus, the Code of Good Administrative
Behavior adopted by the European Parliament on 6 September 2001 at the pro-
posal of the European Ombudsman contains rules and principles that the Union
institutions must respect in their relations with European citizens. But thanks to
the collaboration of the European Mediator with national mediators or similar
bodies in the member countries these principles apply throughout the Union. If
by European administrative law we only understand the law governing the organ-
ization and functioning of the institutions of the European Union, we limit our-
selves to the classical vision of the international organization (see Council of Eu-
rope) which can not impose its decisions on the Member States only through the
Treaty instrument and the need for its ratification to have effect in national law31.
However, European Union regulations are directly applicable in the dom estic law
of the Member States.
§5. European dimension on the study of public administration

The road to Europeanisation of national administrations is also reflected
in academic programs32. There is a European dimension to th e study of public

31 The administrative law rules governing the administration of international classical bodies in
the interwar period are analyzed by Paul Negulescu in the paper „ Principes du Droit Interna-
tional Administratif ”, Académie de Droit International, Librairie du Recueil Sirey, Paris, 1935.
In its opinion, the international administrative law studies the organization of national or
international services created to meet international interests, their way of functioning and inter-
vention, the regulation, control and coordination of the activities of states related to these inte-
rests. International Administrative Law examines the rules governing the management of gene-
ral interests, which, by their nature and importance, go beyond the territorial boundaries of
states in relations between states or between states and individuals. In international administra-
tive law, the essential phenomenon is the international public service, as in central administra-
tive law t he central phenomenon is the national public service. The internal administrative law
examines how the state intervenes through public services aimed at limiting the activities of
individuals or procuring certain advantages. In international administrative law, the interven-
tions of the international community seek to limit and regulate certain public service activities
of the state in order to establish coordination. International Administrative Law was seen as the
right of the International Administration, whose main representative was the League of Nations,
which could be counted as the International Labor Organization, the European Commission of
the Danube, etc. At present, the doctrine discusses the concept of Global Administrative Law
that seeks to invo lve, without distinction, any kind of public or private, national or international
actors involved in the globalization process that sets out rules that go beyond state barriers. At
the same time, a Global Administrative Space is seen as an area of admin istrative convergence
in which states, individuals, enterprises, NGOs and other groups or representatives of national
and global social or economic interests . – see B. Kingsbury, N. Krisch, R. B. Stewart, Sympo-
sium: The Emergence of Global Administrative L aw, New York University School of Law, în
„Law and Contemporary Problems”, vol. 68, Summer –Autum 2005, p. 3 –4; Mircea Duțu, Re-
flecții în legătură cu emergența, natura și trăsăturile definitorii ale dreptului administrativ
global , „Dreptul” no. 7/2015, p. 70 -86.
32 Bernadette Connaughton (Depar ment of Government and Society, University of Limerik,
Ireland) & Tiina Randma (Departament of Public Administration, University of Tartu, Estonia),

European Administrative Space 21

administration found at the level of the university curriculum. Thus, in most cur-
ricula in the member countries, European Integration and Comparative Adminis-
trative Law courses are found. Comparison is the engine of knowledge that leads
to the internationalization of analytical categories33. In all these countries, the
public administration integrates disciplines such as political science, law, eco-
nomics, sociology. However, the legal approach of public administration pre-
vails.

Section 2. The ways in which European administrative convergence
can be achieved

Johan P. Olsen believes that convergence can be achieved in two ways:
either by attractiveness or by imposing the superior model.
Attractiveness involves the voluntary learning and imit ation of the su-
perior model, which is perceived as functional, useful and legitimate. Imposition
means the convergence based on the use of authority or power. Imposition has
played a major role in European convergence until after World War II. It is worth
mentioning the role played in the history of the Roman administrative or Napo-
leonic model. In these models conquerors have imposed their own administration
principles on the conquered countries.
The creation of the current European Union is largely based o n attrac-
tiveness. Ziller notes that EU Member States are pursuing among themselves the
policies they apply to inspire public administration, in this case imitating the vi-
able model34. Practically, European administrations have been studying and cop-
ying for administrative affairs for centuries and sharing important characteris-
tics35.
At European level, Ziller makes a distinction between imitation (approx-
imation) and harmonization . EU policy does not imply the imitation of a model
(as a result obligation), beca use the Union does not seek to erase cultural differ-
ences and traditions, but only "unity in diversity". Practically, legal texts have
always spoken in a traditional36, cultural way, including values and legal institu-
tions specific to each Member State. EU policy requires harmonization, but at the

op. cit. (Teaching and Principles of Public Administration…) , www. unpan.org/europe –
analyticalreport -untc.a sp
33 Mattei Dogan, Dominique Pelassy, Cum să comparăm națiunile: sociologia politică
comparativă , Alternative, Bucharest, 1993, p. 12, 49 și urm.
34 J. Ziller, EU integration and Civil Service reform în „Sigma Papers” No. 23, 1998: 136-154.
Paris: OECD (CCNM/SIGMA/PUMA(98)39).
35 Johan P. Ol sen, op. cit. (Towards a European Administrative Space? ).
36 Pierre Legrand, Despre singularitatea dreptului , translation of Raluca Bercea „Pandectele
Române” no. 6/2007, p. 29.

22 Cătălin -Silviu Săraru

same time notes that there is no need for a single administrative system and iden-
tical institutions throughout the Union. The EU acquis does not create institutions
at national level, but only imposes a certain way of thinking about one thing. The
way this concept is put into practice is at the discretion of states that are free to
create what institutions they want in this r espect. That is why we will never find
a perfect institutional and functional identity in the Member States.
In general, EU arrangements are compatible with the maintenance of in-
stitutional structures and national practices.

Section 3. Trends of harmoniza tion in institutional and decision –
making between the Member States of the European Union

There is no support in the European Union to impose a unitary solution
that goes into a single form of administration. Internal actors and internal struc-
tural divers ity persist despite intense interaction between administrations and
competition among national models.
However, there is a tendency of institutional and decisional approxima-
tion reflected in several concepts: re -launching local autonomy and multiplying
decision -making and coordination structures; the outsourcing of public activities
and its limits in European Comparative Law; administrative litigation systems in
Europe.

§1. Re-launching of local autonomy and multiplying decision -making
and coordination str uctures

Re-launching of local autonomy. One of the major factors common to
the evolution of contemporary administrative institutions is the re -launch of local
autonomy. This is also spurred by the principle of subsidiarity, of German tradi-
tion, but taken over by European primary legislation first by the Single European
Act of 1986 and then by the Treaty of Maastricht. It has thus been established that
'in areas which do not fall within its exclusive competence, the Community does
not intervene, in accorda nce with the principle of subsidiarity, only in so far as
the objectives of the action envisaged can not be sufficiently achieved by the
Member States and can therefore in the light of the scale and effects of the action
envisaged, be better achieved at Co mmunity level. The Community does not go
beyond what is necessary to achieve the objectives of the Maastricht Treaty "(Ar-
ticle 3B). This principle is transposed even before the emergence of the Commu-
nities, traditionally and at national level in the relati ons between the central and
the local administration. Thus, in Federal Germany, federalism was consecrated
in 1947, in Italy regionalism was introduced by the 1948 Constitution, and in

European Administrative Space 23

Spain by the 1978 Constitution. In France, the 1982 -1983 reforms create d the
regions. The same thing happens in Greece, Portugal, the Netherlands, Denmark,
Belgium. In a general way, it can be said that in almost all European states, local
democracy is a kind of corollary of political democracy37. The preferences of the
EU Mem ber States for administrative autonomy must be in line with the effective
and uniform implementation of the Union acquis38.
Multiplying of decision -making and coordination structures. It is no-
ticeable in the countries of the Union to increase the complexi ty of administrative
problems in certain areas such as economy, environment, innovative process (in-
formatics, biotechnology). There is also a segmentation of the administrative de-
cision -making structures at central level, depending on the technical special ties
or the political considerations of the moment, a phenomenon generated by the
need to plan the horizontal coordination authorities in order to maintain the co-
herence of the national policies39. However, although the executive powers are
free to establis h their governing structures within the democratic framework, the
function of the ministries is all the same: to program the activities entrusted to
them, to prepare the draft decisions that the Government must present Parliament,
to liaise with the execut ive bodies of the local government.
The emergence of independent administrative authorities towards the
Government in various fields. Thus, in the field of citizens' fundamental rights
and freedoms, there are authorities that protect the citizen from the administra-
tion's actions in order to ensure good administration (Ombudsman, Parliamentary
Commissioner, Defensor del Pueblo, Mediator of the Republic etc.). There are
also new administrative activities that require more lenient and less formal inter-
ventio ns such as "quangos" (quasi -autonomous nongovernmental organizations)
in the UK. Dehousse, however, believes that an increase in autonomous European
agencies is combined with unwanted discretionary power, through the dissemi-
nation of administrative forces and the loss of coordination and consistency of
the administrative act40. But the reality of these autonomous authorities suggests
that the idea of a single segment that controls the administration is less plausible.
The autonomy of regulating these indep endent administrative bodies was
the subject of a conference of the European Public Administration Group
(GEAP), held in Chester, England on 8 -10 September 1989, under the leadership
of Professor Hugo Van Hassel of the Catholic University of Leuven, Belgiu m. At
this conference, it was attempted to define these bodies, arising from a need for
functional decentralization and management improvement in order to respond

37 Ioan Alexandru, Administrația publică. Teorii. Realități. Perspective , 2nd edition, Lumina Lex,
Bucharest, 2001, p. 610.
38 Johan P. Olsen, op. cit. (Towards a European Administrative Space? ).
39 Ioan Alexandru, op. cit. (Administrația publică. Teorii. Realități. Perspective) , 2001, p. 611.
40 R. Dehousse, Misfits: EU law and the transformation of European governance . în C. Joerges
and R. Dehousse (eds.): Good Governance in Europe’s Integrated Market: 207-229. Oxford:
Oxford University Press, 2002.

24 Cătălin -Silviu Săraru

rapidly to the needs of the population and sometimes even to save fundamental
rights in certa in sectors41. It has been stressed that this process must be de-
politized, only to ensure the relative independence of these organisms. There have
been a number of issues that have remained open and which may still have the
same echo today: to what extent ca n these bodies be considered truly independ-
ent? given that they get rid of government control, what might be their influence
on the government ?; as these bodies are entrusted with a regulatory power, how
could political control or judicial appeal be guara nteed ?; how will these bodies
be financed or whether they enjoy financial independence ?; what will be the
degree of bureaucratization of these bodies ?; will they be a source of innovation
or, on the contrary, will they tend to guarantee their own surviv al in the long
term?

§2. The outsourcing of public activities and its limits in the European
comparative law

2.1. Introductory considerations

The externalization ( outsourcing ) of the administrative functions is de-
fined in the French doctrine as b eing “the entrustment of the exploitation of an
activity by a public authority, temporarily and in exchange for a fee”42 or “an
administration instrument that allows a public organization to delegate certain
non-strategical functions, previously exerted by it, to the exterior services pro-
vides”43. In Italy the externalization was defined as “a complex contractual report
designated to the acquisition by an exterior supplier, through a medium term con-
tract, of services previously performed through internal publ ic entity means”44.
Through the externalization the traditional administrative structures as
placed between hierarchy and market. The purpose of the externalization of pub-
lic activities is the enrichment of the service mean of the citizens’ interests.

41 See, in this respect, Dreptul No 1 -2 / 1990, first year, the 3rd series of Chronicles, Article: The
Conference on the Regulatory Autonomy of Administrative Bodies, p. 143.
42 Philippe Cossalter, Les délégations d’activités publiques dans l’Union européenne , Librairie
générale de droit et de jurisprudence , Paris, 2007 , p. 3.
43 Paul Lignières, Laurent Babin, « L'externalisation : au coeur des préoccupations de l’Etat »,
Droit Administratif (DA), May 2002, p. 37.
44 Anna De Blasiis, Outsourcing e Global service , Unità di Direzione AA.II. Ufficio Studi ,
http://www.provincia.potenza.it/allegati/Outsourcing_Global_service.doc , Provincia di Po-
tenza (Italie), undated, p. 3 (last consulted on the 15th of July 2017).

European Administrative Space 25

In our opinion the externalization does not present an abandonment to the
private environment of an activity previously performed by the public authori-
ties45. In this meaning we highlight the fact that the transfer of the activity is tem-
porary and the public a uthority keeps the control right over the way in which the
public interest is satisfied by performing the respective activity.
The externalization of the public activities represents a component of the
reform of public administration. We mention that nume rous questions are asked
in the doctrine of the law and management regarding the direction that must be
followed in the reform activity – with accent on the administration as public ser-
vice, according to the French model, or with accent on profitableness, efficiency
and market, after the American model – and, in consequence, questions about
how the relation public law -private law will evolve46. Many times, there is the
impression that the public law would have abusively occupied a territory belong-
ing to the private law and that the current tendency of introducing the competition
and market rules in the functioning of public service would lead to a fall of the
administrative law. We appreciate that the reform of the public administration
must be performed thro ugh a conciliation between the French and the American
models, by introducing market rules within the industrial and commercial ser-
vices in the limits allowed by the public interests, without fearing that they would
lead to a non -structuring of the adminis trative law. In this meaning we share the
point of view expressed by Francis Fukuyama who distinguishes between “the
span of the state’s activities [our underlining C.S.S] , which refers to the different
functions and purposes assumed by governments and the force of the state’s
power [our underlining C.S.S.] or the possibility of the state to plan and execute
policies and to apply the law correctly and transparently – which is currently
called the state’s capacity or institutional capacity”47. The optimum way of the
reform, the author appreciates, “consists of reducing the span by increasing the
force in the same time”48. Agreeing to the opinion of this author’s we consider
that it is imposed, in the current conditions, the reduction of the span of the state’s
activities by taking over some of them by the private environment, through the
administrative, commercial, civil contracts, etc. concomitantly to performing cer-
tain coherent public polities of control and surveillance of the way in which the
citizen’s inte rests is satisfied.

45 In the private environment th e externalization is presently defined as being “an abandonment of
the a branch of an activity developed by an enterprise which ceases it to another enterprise after
the latest insured, in exchange, the production or service for which that activity branch has been
dedicated” – Jacques Dupouey, „Propos sur l’externalisation”, Droit et patrimoine , n°59/avril
1998, p. 42.
46 See Ioan Alexandru, Dreptul și managementul. Dihotomie sau complementaritate. Impactul
informatizării , All Beck, Bucharest, 2004, p. 49 -61.
47 See Francis Fukuyama, Construcția statelor. Ordinea mondială în secolul XXI , Antet, Bucharest,
2004, p. 14.
48 Ibidem, p. 23.

26 Cătălin -Silviu Săraru

We will finally perform a presentation of the public activities that can be
externalized in a few representative countries in the Romano -German law system
(France, Germany, Spain, Italy) and the Anglo -Saxon law system (Great Britain).
Although, in principle, the public activities that involve the exercise of sover-
eignty (justice, police, army) cannot be performed by the private sector, we will
observe that they are different nuances from country to country.

2.2. The limits of the exter nalization of public activities in Great
Britain

On the level of the local collectivities Local Government Act 197249 re-
fers in art. 111(1) to the subsidiary powers of the local authorities showing that:
a local authority shall have power to do any thing (whether or not involving the
expenditure, borrowing or lending of money or the acquisition or disposal of any
property or rights) which is calculated to facilitate, or is conducive or incidental
to, the discharge of any of their functions. We notice that the local authorities
have a large competence in performing their mission of serving the public inter-
ests. In the doctrine there was the question if these public authorities have the
possibility that using the competence showed by art. 111 of Local Govern ment
Act to conclude contracts for the externalization of the public activities50. Based
on these laws, the externalization has been encouraged by the Thatcher govern-
ment51. In order to achieve efficiency and savings in supplying the public ser-
vices, this go vernment involved through its public authority in the local admin-
istration. Thus, the central government settled the specific competences for the
local authorities and transferred the authority to the governmental agencies cre-
ated in the territory52.
The T hatcher government oriented to the market and defined the way in
which the public services could be supplied by the private sector. In 1980 Com-
pulsory competitive tendering (CCT) was created for the putting in compulsory
competition the internal administra tive services with the private sector, based on
the principle of the best advantages -costs report – the principle value for money53.

49 Published in http://www.england -legislation.hmso.gov.uk (last consulted on the 15th of July
2017).
50 Philippe Cossalter, Le droit de l’externalisation des activités publiques dans les principaux
systèmes européens , online : http://chairemadp.sciences -po.fr/pdf/seminaires/2007/ rapport_
Cossalter.pdf , 2007, p. 7 (last consulted on the 15th of July 2017).
51 Margaret Thatcher was in front of the English government for 11 years, since 1979 until 1990
when she resigned. She was the first prime minister who obtained three mandates in a row.
52 See Ioan Alexandru, Administrația publică. Teorii. Realități. Pers pective , 2nd edition, Lumina
Lex, Bucharest, 2001, p. 311, 312.
53 George Boyne, “Competitive Tendering in Local Government: A Review of Theory and Evi-
dence”, Public Administration , Vol. 76, No. 4/Winter 1998, p. 695 -712; Danny Frederick, Why

European Administrative Space 27

Through Local Government Act 1988 the local authorities were requested to con-
tract and offer the private companies the suppl y of services such as: collecting
the litter, cleaning the buildings, supplying the schools, maintaining the roads,
managing the sports and entertainment facilities54. These activities were proposed
for concession. But the concession as legal institution wi ll appear in the English
law with the construction of the railroad tunnel under the English Channel, being
taken over from the French law.
Through this procedure the local authorities, conceding the public ser-
vices to the private sector and monitoring the results, became agencies of the
central power. The agency model specific to the British administration is based
on the development of a powerful and competitive private sector, as basis for
supplying quality public services. Without this competitive priva te sector the
agency model would not be possible. The agency model favors the efficiency in
supplying services, mixing the areas of services supply with the political authority
and highlights the non -governmental actors as services suppliers.
Meanwhile, t he public administration and the agencies adopted different
acts used for the delegation of the administration of public services55. Thus, in the
field of public services regarding the water resources, water supply and purifica-
tion, Regional Water authorith ies elaborated in 1989 « Water act », which in-
cludes the main clauses in this field and which the private companies must fulfill
regarding the consumers (beneficiaries) of these public services56. In the field of
public telecommunications services, in 1984, in Great Britain, « Telecomunica-
tions act » was adopted, which sets the functioning regime for the telecommuni-
cation services, under the surveillance of the entity entrusted with their supervi-
sion, Office of telecomunications . Also, in Great Britain other regulations have
been adopted that settle the obligations in the field of methane gas – “Oil-gas
entreprise act ” – adopted in 1982, in the field of electricity supply – “Electricity
act” in 1989, and related to the concessions for the building and exploit ation of
the highways – “New roads act and street Work act ”, adopted in 199157.

compulsory com petitive tendering for Local Government services is not as good as privatiza-
tion, http://www.libertarian.co.uk/lapubs/econn/econn052.pdf , 1994, p. 1, 2 (last consulted on
the 15th of July 2009).
54 Peter John, The Restructuring of Local Government in England and Wales , în Richard Batley and
Gerry Stoker (editors), Local Government in Europe: Trends and Development , MacMillan,
London, 1991, p. 58 -72.
55 See Olivier Raymundie , Gestion délé guée des services publics en France et en Europe , Le Mo-
niteur, Collection: L'actualité Juridique, Paris, 1995, p. 47.
56 See Andrew Dunsire, „Coûts, progres et avantages de la privatisation secteur public, secteur
privé, l ’experience du Royaume -Uni”, Revue internationale des sciences administratives , 1990,
p. 102
57 Olivier Raymundie, op. cit. , p. 150

28 Cătălin -Silviu Săraru

An impulse regarding “the contractualisation” of the public activities was
given by Deregulation and Contracting Out Act 199458. This law did not directly
authorize the contract ing out of public activities, but it gave ministers the ability
to adopt a regulatory act ( order ) through which to authorize their contractual del-
egation. Additionally, the law excludes any possibility of externalization by con-
tract of certain functions pr ovided in art. 71(1): “(a) its exercise would constitute
the exercise of jurisdiction of any court or of any tribunal which exercises the
judicial power of the State; or (b) its exercise, or a failure to exercise it, would
necessarily interfere with or oth erwise affect the liberty of any individual; or (c)
it is a power or right of entry, search or seizure into or of any property; or (d) it
is a power or duty to make subordinate legislation”. In the doctrine these limits
of the externalization of the public activities have been discussed59. An author
highlights that nothing prevents the entrusting to the private sector of the admin-
istration of the trade registry or marital status60. Another author considers that the
exclusions provided by art. 71 of the Deregu lation and Contracting Out Act 1994
do not have an intangible character, a simple amendment being enough to make
any jurisdictional functions delegable, including the one exerted by the House of
Lords, given the absence of a Constitution61. Therefore, it re sults that the protec-
tion of the core public functions is mainly based on the exertion of “self -control”
from the public authorities, of an internal discipline, and less on constraining
written norms62.
One of the limits of the externalization of public competences is given in
Great Britain by the accentuation of the principle delegatus non potest delegare
(“the delegated cannot delegate”) – the interdiction of sub -delegation63. This vi-
sion opposes to the one developed in the United States, where the field of the
public non -delegable activities is seen rather as an ensemble of core non -suscep-
tible functions to be exerted by a private person64.

58 On this law see: Sue Arrowsmith, The Law of Public and Utilities Procurement , 1996, Sweet &
Maxwell, London, 1996 , p. 26, 27; Mark Freedland, “Privatising Carltona ; Part II of the
Deregulation and Contracting Out Act 1994”, Public Law , 1995, p. 21.
59 Philippe Cossalter, Bertrand du Marais, La private finance initiative, Institut de la Gestion
Déléguée, online: www.fondation -igd.org/pdf/Publi/ PFI.pdf, Paris, 2001, p. 40 -42 ( last
consulted on the 15th of July 2017).
60 Mark Freedland, op. cit. (1995), p. 21, 23.
61 Paul Craig, «The Contract State: Administrative Law Revisited », in Yvonne Fortin, La contrac-
tualisation dans le secteur public des pays industrialisés depuis 1980 , L’Harmattan, Paris,
1999, p. 368.
62 Philippe Cossalter, op. cit. (Le droit de l’externalisation… ), p. 9.
63 Paul Craig, op. cit. , p. 368
64 Philippe Cossalter, op. cit. (Le droit de l’externalisation… ), p. 7.

European Administrative Space 29

2.3. The limits of the externalization of public activities in France

In the doctrine an author considered that t he problem of externalizing the
state’s imperial functions cannot be considered, given the incompatibility of the
contractual procedure with the administrative police activities65.
Currently in the doctrine it is deemed that the public functions involving
the exercise of authority prerogatives are not delegable66. Also, in the jurispru-
dence it was appreciated that within the public functions the distinction between
the prescription functions that are always non -delegable and the action functions
that are del egable when the exercise of authority is not involved must be made67.
The French State Council elaborated the distinction between the non -del-
egable activities in the virtue of legal provisions and non -delegable activities by
their nature68. The latest may b e defined only by referring to the core functions of
the state: police, justice, army, normative activity.
Some activities cannot be delegated for a legal regulation attribute the
competence of their performance to a determined public institution. Thus, t he
State Council pronounced regarding the interdiction for French public hospitals
to delegate the activity of medical housing to the private environment, expression
of the principle that shows that the holder of a competence cannot transmit it
unless unde r the conditions in which the law expressly provides such a possibil-
ity69.
The Constitutional Council showed that the national public services
which have their existence fundament in the dispositions of constitutional nature
(“services publics constitution nels„) cannot make the object of privatization70. In
spite of all these in the recent jurisprudence is appreciated that the sovereignty
function performed by the constitutional public services may be decomposed in
the core functions and annex functions, wit h technical character, susceptible of
being entrusted to the private persons71. Thus, for example the Constitutional

65 Jacques Moreau, « De l’interdiction faite à l’autorité de police d’utiliser une technique d’ordre
contractuel », L’actualité juridique droit administratif (AJDA) , Paris, 1965, p. 3 -17.
66 Philippe Terneyre, « Les convention s de délégation globale de stationnement payant », Bulletin
juridique des contrats publics (BJCP ) nr. 5/ 1999, p. 404.
67 The Decisions of the French State Council: Consort Amoudruz (23 May 1958) , Dame Verneuil
(4 October 1961) , http://www.conseil -etat.fr/cde/ (last consulted on the 15th of July 2017).
68 Conseil d’État, avis de la section de l’Intérieur, 7 octobre 1986, n° 340.609, Grands Avis du
Conseil d’État , 1ère éd., 1997, n° 24, p. 245.
69 L’avis du Con seil d’État, 16 juin 1994, http://www.conseil -etat.fr/cde/fr/les -grands -avis/ (last
consulted on the 15th of July 2017).
70 Décision n° 86-217 DC/18 septembre 1986, Loi relative à la liberté de communication; Décision
n° 87-232 DC/7 janvier 1988, Loi relative à la mutualisation de la Caisse nationale de crédit
agricole ; Décision n° 96-375/9 avril 1996, Loi portant diverses dispositions d'ordre écono-
mique et financier – http://www.conseil -constitutionnel.fr/ (last consulted on the 15th of July
2017).
71 Décision n° 2002 -461 DC/29 août 2002, Loi d'orientation et de programmation pour la justice,
http://www.conseil -constitutionnel.fr/ (last consulted on the 15th of July 2017).

30 Cătălin -Silviu Săraru

Council admitted that art. 49 of the Orientation and Programming Law for jus-
tice72 that allows the entrusting to the private environment of t he electronic sur-
veillance tasks of persons under judicial control, only considers “the technical
performance that may be detached from the sovereignty functions”73. This is also
the case of art. 53 of the Law regarding the immigration74 which allows the en-
trusting to the private environment of the armed transport of retained persons
to/from retaining centers75.
The delegation of public service is defined in art. L1411 -1 of the General
Code of the territorial collectivity ( Code général des collectivités terri toriales ) as
being a contract by which a moral person of public law entrusts the administration
of the public service under its responsibility to a public or private principle, whose
fee is substantially related to the service’s exploitation results. The p rinciple may
be entrusted to make a paper or to acquire the goods necessary for the service.
It is worth highlighting the fact that the public -private partnership sys-
tems have a long tradition in France through the collaboration between authorities
and th e private sector regarding the concession of public goods, even since the
end of the 19th century and the beginning of the 20th century, period in which the
French doctrine of public services is formed76. In France, the partnership forms
between local autho rities and community authorities, in the meaning we accept
today, appear from the 80s for the prevention and fighting of delinquency, as well
as for the insurance of social cohesion77. Presently, the administrative contract for
public -private partnership is regulated by the Ordinance no. 559/200478.

72 Loi n° 2002 -1138 du 9 septembre 2002 d'orientation et de programmation pour la justice, « LOPJ
», Journal officiel de la République française (JORF ) n° 211 du 10 s eptembre 2002,
http://www.legifrance.gouv.fr (last consulted on the 15th of July 2017).
73 Décision n° 2002 -461 DC/29 août 2002, Loi d'orientation et de programmation pour la justice .
74 Loi n° 2003 -1119 du 26 novembre 2003, relative à la maîtrise de l'immigration, au séjour des
étrangers en France et à la nationalité, JORF n° 274 du 27 novembre 2003, http://www.le-
gifrance.gouv.fr (last consulted on the 15th of July 2017).
75 Conseil Constitutionnel, Décision n° 2003 -484 DC/20 novembre 2003, Loi relative à la maîtrise
de l'immigration, au séjour des étrangers en France et à la nationalité, http://www.conseil –
constit utionnel.fr/ (last consulted on the 15th of July 2017).
76 Mariana Stancu -Țipișcă, Persoanele juridice de drept public , C.H. Beck, Bucharest, 2006, p.
251.
77 The creation of the Communal Councils for the Prevention of Delinquency (Conseils
Cammunaux de Prevention de la Deliquance ), and then the Law for the orienta tion and
programming of security (d’Orientation et de Programmation de la Sécurité – 1995) and in
1997 the apparition of „Contrats Locaux de Sécurité” (CLS), created the premises of
developing the public -private partnership between the local authorities an d the local partners
for the prevention of delinquency and insuring social cohesion ( Report of the Seminar Public –
Private Partnership, Hague, Netherlands, 16 – 17 December, 2002) .
78 Journal officiel n. 141/19.06.2004.

European Administrative Space 31

2.4. The limits of the externalization of public activities in Germany

In Germany “the contractualisation” of the public action is very ad-
vanced, the conclusion of public law contracts through which the provisio ns of
an administrative document are to be replaced being allowed. Thus the Law over
the non -contentious federal administrative procedure of 25 May 197679 (Verwal-
tungsverfahrensgesetz des Bundes – VwVfG) dedicates one of its parts (4th Part,
art. 54 -62) of the public law contracts. The law shows in art. 54 that “a law report
in the field of public law may be founded, modified or terminated by public law
contract ( öffentlich -rechtlicher Vertrag ), except for the contrary law regulations.
In particular, the adm inistrative authority may, instead of edict an administrative
act, conclude a public law contract with the one the administrative act is desig-
nated to”.
In spite of all these, in Germany the legislation on the level of the lands
interdicts the delegation of functions designated to performing “the social wel-
fare” as the sanitation and treating of wastes. On the other side the German state
externalized the entire non -military communications system of the Ministry of
Defense80. Therefore, the problem is to def ine the imperial functions exerted ex-
clusively by the pubic authorities, to identify the content of these functions and
the eventual existing exceptions. The German doctrine operated a distinction be-
tween “the administration as authority” (Hoheitverwaltung ) and “the administra-
tion as enterprise” (Betriebsverwaltung) , distinction resembling the one between
the public functions and the public services the Italian and Spanish doctrine op-
erate with81. Through Hoheitverwaltung , the imperial functions ( jus imperii ) of
the state which traditionally are non -delegable (public security, defense etc.) are
performed. Betriebsverwaltung designated those activities usually exerted in the
regime of private law and which can be externalized. The German fundamental
law explic itly interdicts the externalization of the public functions exerted by
Hoheitverwaltung . Thus, art. 33(4) of the German fundamental law (Grundgesetz
für die Bundesrepublik Deutschland , GG) sets as general rule that “the exercise
of power of the public auth orities must be entrusted with permanent title to the
members of the public function in service and fidelity report of public law”82. In
practice, it was considered that 40% of the functions of such a prison may be
entrusted to the private sector without co ntravening the dispositions of art. 33(4)

79 Consolidated version (14.06.2005), www.bijus.de (last consulted on the 15th of July 2017).
80 Philippe Cossalter, op. cit. ( Le droit de l’externalisation… ), p. 8
81 Fernando Garrido Falla, «El concepto de servicio público en derecho español», Revista de Admi-
nistración Pública Núm. 135/Septiembre -diciembre 1994, p. 12. http://www.cepc.es (last con-
sulted on the 15th of July 2017).
82 „Die Ausübung hoheitsrechtlicher Befugnisse ist als ständige Aufgabe in der Regel Angehörigen
des öffentlichen Dienstes zu übertragen, die in einem öffentlich -rechtlichen Dienst – und
Treueverhältnis stehen”.
http://www.bundestag.de/parlament/funktion/gesetze /Grundgesetz/index .html (last consulted
on the 15th of July 2017).

32 Cătălin -Silviu Săraru

of the German fundamental law, such an externalization being illicit as long as it
does not have a direct connection with the execution conditions of a court of law
decision (Strafvollzug )83. Starting from such empi rical studies, we came to inter-
pret art. 33(4) of the German fundamental law in the meaning of separating the
exercise of power (exclusively performed by the public authority) from the tech-
nical activities (which may be externalized to the private environm ent)84.
Beyond the existing restrictions on the level of the federation, the lands
have an own legislation for the regulation of the administration of public services
that illustrates the heterogeneous conceptions over the public activities that may
extern alized. Thus, in some lands the interdiction to entrust the private sector with
sanitary and social activities is regulated, as well as the water distribution. Also,
we notice a tendency to constitute local holdings that allow the financial compen-
sation (Querverbund ) of the profitable and unprofitable public service activities85.

2.5. The limits of the externalization of public activities in Spain

In Spain the doctrine, beginning with the legal provisions, theorized the
distinction between the public funct ions and the public services86. The public
functions are the expression of state’s sovereignty and they cannot be external-
ized. The Law No. 7/1985 regarding the regulation of the fundaments of the local
regime ( Reguladora de las bases del régimen local – « RBRL »)87 in art. 92(2)
and then the Law No. 7/2007 regarding the fundamental status of the public civil
servant ( Ley 7/2007, del Estatuto Básico del Empleado Público )88 in the addi-
tional dispositions showed that the public functions are those activity that involve
the exercise of authority for the achievement of the general interests of the state
and public administrations as the budgetary control functions and economic -fi-
nancial administration functions, accounting and treasury functions. Addition-
ally, the doctrine showed that there are activities involving the exercise of author-
ity: security of public places; directing the traffic and the persons on the public

83 Christean Wagener, „Privatisierung im Justizvollzug – Ein Konzept für die Zukunft“ Zeitschrift
für Rechtspolitik , 2000, p. 169 -216.
84 Philippe Cossalter, op. cit. (Le droit de l’extern alisation… ), p. 12.
85 Gérard Marcou, « Les modes de gestion des services publics locaux en Allemagne et le problème
de l’ouverture à la concurrence », Revue française de Droit administratif, nr. 3/1995, p. 476.
86 See Fernando Garrido Falla, op. cit. , p. 12 , 13; Amparo Koninckx Frasquet, « La necessaria
concreciòn del contrato de gestiòn de servicios públicos. Espacial referencia al ámbito munici-
pal », Revista de Estudios de la Administración Local y Autonómica , n° 279/enero -abril 1999,
p. 177 -211.
87 Boletín Oficial del Estado (BOE) n. 80/3.04.1985, Consolidated version (29.05.2007),
http://www.csieiro.com/TodoLeyes/LeyesOrdinarias/Ley%207 -1985 -LBRL.htm (last
consulted on the 15th of July 2017).
88 BOE 13.04.2007, http://www.csieiro.com/TodoLeyes/LeyesOrdinarias/Ley%207 -2007 -del%20
EBEP.htm (last consulted on the 15th of July 2017 ).

European Administrative Space 33

roads, the protection and extinction of fires, the discipline in the field of urbanism.
In the jur isprudence it is showed that the service of taxation cannot be external-
ized, as it is considered a public function involving the exercise of authority89.
Regarding the public services with commercial character the Spanish law
settles with limits their admi nistration ways. The delegation (externalization) of
the public activities cannot manifest except in the field allowed by the legislation.
Thus, the regime of contractual ways of administration of public services is reg-
ulated through a general law – the La w on public administration contracts No.
13/1995 of 18 May 1995 ( Ley de contratos de administraciónes públicas –
LCAP)90, reformed by the royal legislative decree No. 2/2000 of 16 June 200091.
The Law No. 13/2003 of 23 May 2003 will modify and complete the d ispositions
of LCAP regarding the concession contract for public works92.
LCAP distinguishes between the administrative contracts and the private
contracts of the administration. In Book I is set that the general regime of the
administrative contracts, fo r then Book II defines the specific regime of each type
of administrative contract. Four administrative contracts categories are regulated:
works contracts ( contratos de obras ), services contracts ( contratos de servicios ),
furnishing contract ( contratos de suministro ) and public services administration
contract ( contratos de gestión de servicios públicos ). Within the works contracts
we distinguish between the simple acquisition contract for works and the conces-
sions of public works ( concesiónes de obras ). The category of the public services
administration contract includes four form of indirect administration of public
services: concession, concierto, interested administration and mixed economy
company93. Regarding the limits in which the externalization of t he public ser-
vices supply can be performed, LCAP provides in art. 63 that “the state may in-
directly administer, by concluding contracts, all services in its competence that

89 Sentencias del Tribunal Supremo de 29.01.1990, RJ, n° 561; 5.03.1993, RJ, n° 1555; 31.10.1997,
RJ, n° 7242 http://www.poderjudicial.es (last consulted on the 15th of July 2009).
90 BOE n. 119/19.05.1995, http://www.carreteros.org/legislaciona/contratos/lcap/lcap.htm (last
consulted on the 15th of July 2017).
91 Real decreto legislativo 2/2000, de 16 de junio, por el que se aprueba e l texto refundido de la ley
de contratos de las administraciones publicas, BOE n. 148, 21.06.2000.
92 LEY 13/03, de 23 de mayo, reguladora del contrato de concesion de obras publicas, BOE n. 124,
24.05.2003.
93 Artículo 156 LCAP. Modalidades de la contrataci ón. – La contratación de la gestión de los ser-
vicios públicos adoptará cualquiera de las siguientes modalidades: a) Concesión, por la que el
empresario gestionará el servicio a su propio riesgo y ventura, siendo aplicable en este caso lo
previsto en los ap artados 1 y 3 del artículo 232 de la presente Ley. (Letra redactada de con-
formidad con la LEY 13/03); b) Gestión interesada, en cuya virtud la Administración y el em-
presario participarán en los resultados de la explotación del servicio en la proporción que se
establezca en el contrato; c) Concierto con persona natural o jurídica que venga realizando
prestaciones análogas a las que constituyen el servicio público de que se trate; d) Sociedad de
economía mixta en la que la Administración participe, por sí o p or medio de una entidad pú-
blica, en concurrencia con personas naturales o jurídicas.

34 Cătălin -Silviu Săraru

have an economic content which allows them to be exploited by private enter-
prisers and which are not the object of the exertion of the sovereign rights (exclu-
sive rights)”.
In 2007 the Law No. 30/2007 of the contract in the public sector ( Ley de
contratos del sector público94, LCSP) has been adopted, through which the pro-
visions of the 2 004/18/EC Directive are transposed, law that has a larger applica-
tion sphere than LCAP (is addressed to all public entities) regarding the general
collaboration between the public sector and the private sector95.
The tendency manifested on the level of the national authorities is in the
meaning of the adaptation of “a contractual system” which allows the conclusion
of partnerships between the public sector and the private sector regarding the ad-
ministration of public services with commercial character96.
2.6. The limits of the externalization of public activities in Italy

The Italian doctrine, starting from the provisions of the Italian Criminal
Code97 (art. 357 and 358), operated the distinction between the public functions
including the non -delegable activi ties and the public services including delegable
activities. The two articles that are part of the Title II of the Criminal Code called
“Crimes against public administration” ( Dei delitti contro la pubblica ammin-
istrazione ) distinguish between the persons entrusted with the performance of “a
legislative, administrative or judicial public function” and the two that are en-
trusted with the performance of a public service” 98. Art. 357 assimilated to the

94 BOE n. 261/31.10.2007, http://www.derecho.com/l/boe/ley -30-2007 -contratos -sector -public o
(last consulted on the 15th of July 2017).
95 Alfonso Peña Ochoa, « El nuevo contrato de colaboración entre el sector público y el sector
privado en la ley 30/2007, de 30 de octubre, de contratos del sector público», Revista Aragonesa
de Administración Pública n. 32/junio 2008, Monografías, Zaragoza, p. 87 -107,
http://portal.aragon.es/portal/page/portal/IAAP/REVISTA (last consulted on the 15th of July
2017).
96 Carmen Chinchilla Marín , “El nuevo contrato de colaboración entre el sector público y el sector
privado”, Revista española de Derecho Administrativo , n° 132/2006, p. 609 -644.
97 Consolidated version (7.04.2009), http://it .wikisource.org/wiki/Codice_Penale (last consulted on
the 15th of July 2017).
98 Art. 357 Nozione del pubblico ufficiale.
Agli effetti della legge penale, sono pubblici ufficiali coloro i quali esercitano una pubblica funzione
legislativa, giudiziaria o am ministrativa. Agli stessi effetti e' pubblica la funzione
amministrativa disciplinata da norme di diritto pubblico e da atti autoritativi e caratterizzata
dalla formazione e dalla manifestazione della volonta' della pubblica amministrazione o dal suo
svolg ersi per mezzo di poteri autoritativi o certificativi (1). (1) Articolo cosi' sostituito dalla L.
26 aprile 1990, n. 86 e successivamente modificato dall'art. 4, L. 7 febbraio 1992, n. 181.
Art. 358 Nozione della persona incaricata di un pubblico servizio
Agli effetti della legge penale, sono incaricati di un pubblico servizio coloro i quali, a qualunque
titolo, prestano un pubblico servizio. Per pubblico servizio deve intendersi un'attivita' disci-
plinata nelle stesse forme della pubblica funzione, ma cara tterizzata dalla mancanza dei poteri
tipici di questa ultima, e con esclusione dello svolgimento di semplici mansioni di ordine e della

European Administrative Space 35

public function “the administrative function submitted to the public law norms
and the authority acts and characterized by forming and manifesting the public
administration’s will with the help of the authority and certification powers”. Be-
ginning from this definition, in the Italian doctrine it is appreciated th at the public
function represent the ensemble of activities designated to fulfilling the essential
(core) functions of the state (justice, public security, defense) while the public
services are those activities that the state undertakes for the performanc e of the
social welfare99. The public function is the expression of direct manifestation of
authority, sovereignty of the state. Thus, concretely, the activity of the legislative
and judicial powers always compose the content of the public function, while t he
activity of the administrative power does not form its content unless when its
manifestations have, in their ensemble, an authority character, like police activi-
ties, military activities, fiscal activities; other manifestations form the content of
the p ublic services100.
Regarding the public services, it is noticed that in Italy the means of ad-
ministering them are provided with limits by the legislation. On national level in
the matter of public concessions, the Law No. 109/11 February 1994 (the Law
Merlo ni – Legge quadro in materia di lavori pubblici ) modified by the Law No.
415/18 November 1998, with the ulterior modifications, regulated the public
works concessions until 2006 when it has been abrogated by the Code of Public
Contracts. The community dire ctives in the field of public acquisitions
(2004/17/CE and 2004/18/CE) have been transposed in the national law through
the Code of the Public Contracts for works, services and furnishings ( Codice dei
contratti pubblici relativi a lavori, servizi e fornitu re in attuazione delle direttive
2004/17/CE e 2004/18/CE101), adopted by the Legislative Decree No. 163/2006.
On local level the means of administering arte expressly determined by
art. 113 of the Legislative Decree No. 267/2000 regarding the unique Text of the
laws over the organization of the local entities102 (Testo unico delle leggi sull'or-
dinamento degli enti locali -« T.U.E.L. ») that operate a distinction between the
activities with industrial character (delegable) and without industrial character
(non-delegable).
The distinction between the public functions and the public services with
industrial character is sometimes blurred. Thus in Italy the Legislative Decree

prestazione di opera meramente materiale (1). (1) Articolo cosi' sostituito dalla L. 26 aprile
1990, n. 86.
99 Umberto Po totschnig, I pubblici servizi , Casa Editrice Dott. Antonio Milani (CEDAM), Padova,
1964, p. 169.
100 Massimo Severo Giannini, Diritto amministrativo , Giuffrè, Milan 1993, 3ème édition, vol. 2, p.
17.
101 http://www.simone.it/appaltipubblici/codice/codice_appalti.htm (last consulted on the 15th of
July 2017) .
102 Gazzetta Ufficiale della Repubblica Italiana ( GURI ) n° 227/28.09.2000. Consolidated version
(25.03.2017) http://www.finanzalocale.interno.it/docum/studi/varie/testounico267 -2000.pdf
(last consulted on the 15th of July 2017).

36 Cătălin -Silviu Săraru

No. 112/1999103 opened the possibility of delegating by decennial concession of
the functio ns of collecting taxes of any kind from companies, unlike Spain where
the Supreme Tribunal interdicted the delegation of these functions104. Thus in It-
aly a part of the imperial activities ( jus imperii ) of the state are exerted concretely
by the concessionar y, but the state keeps the right to control. Besides, in the Italia
law, the notion of concession was based on the idea of transfer through unilateral
act of the prerogatives of public power105.
In Italy “the contractualisation process” for the administrati ve action is
very advanced, some German influences being felt. Thus, the Law No. 241/1990
regarding the administrative procedure and the right to access to the administra-
tive document ( Legge 241/90 Nuove norme in materia di procedimento ammin-
istrativo e di diritto di accesso ai documenti amministrativi106) allowed the con-
clusion of agreements ( accordi con gli interessati ) which determine the content
of an administrative decision or which substitutes to it (art. 11), like the provi sion
of the German legislatio n.

103 Decreto Legislativo 13 aprile 1999, n. 112 "Riordino del servizio nazionale della riscossione, in
attuazione della delega prevista dalla legge 28 settembre 1998, n. 337", Gazzetta Ufficiale n. 97
del 27 aprile 1999, http://www.giustizia.it/ cassazione/leggi/dlgs112_99.html (last consulted on
the 15th of July 2017).
104 Philippe Cossalter, op. cit. ( Le droit de l’externalisation… ), p. 11.
105 See for this the Italian theory of the license -concession and the contract – concession developed
by the a uthors Mantellini and Giorgi. These authors start the development of their point of view
from an approval of the Italian State Council of March 10th 1879. In essence, the theory recog-
nizes the principle according to which the concession is a unilateral doc ument. But, its nature
may be modified depending on certain circumstances, thus becoming contractual. Thus we will
have two categories of concessions: on one side the unilateral concessions also called license –
concessions and on the other side the bilatera l concessions or the contract – concessions. After
Mantellini we will be in front of a contract -concession every time the document also contains
obligations for administration. But Mantellini shows that “the document will remain a conces-
sion document and th at the state’s obligations are born more often from laws (or administrative
documents) through which the concession is granted, than by contract”. Giorgi includes in the
contract -concessions category all the cases in which the concession document is accomp anied
by a contract or an additional document which imposes mutual obligations and rights – apud
Ange Blondeau, La concession de service public , Librairie Dalloz, Paris, 1930, p. 139 -141. See
in Jurisprudence: Corte di Cassazione, 12 gennaio 1910, Rivista del diritto commerciale (Riv.
dir. comm.), 1910, 248; Corte di Cassazione, 1 section, 11 dicembre 1978, Comune di
Castelfranco Veneto c/ Soc. Officine gaz Butano , La Settimana Giuridica 1979.II.509; Corte di
Cassazione, 3 sect. civ., 3 settembrie 1998, Soc. Compagnia Cauzioni ed altro c/ Comune di
Barletta ed altri , n° 8768, Giustizia civile massimario (Giust. Civ. Mass.) 1998, p. 1849.
106 Legge 241/1990 come modificata dalla legge 15/2005 e dal decreto legge 35/2005 ,
http://www.diritto.it/archivio/1/26488.pdf (last consulted on the 15th of July 2017).

European Administrative Space 37

2.7. Conclusions. The convergence limits regarding the externaliza-
tion of the public activities in the Member States of the European Union

The convergence limits regarding the externalization of the public activ-
ities in the analyzed countries may be resumed to the graphic below:

Delegable activities

Appendix activities (technical performance)
detachable of the essential public functions
(of sovereignty): electronic surveillance of the
persons under judicial control in France; the
externaliza tion (outsourcing) of the non -military
fixed communication system of the Ministry of
Defense in Germany. The public -private partnership, concessions,
public acquisitions having as object the
public services with industrial and
commercial character: local cleaning
services, water supply, public illuminating,
public transport, constructing highways etc.

Public functions Public services

Public essential activities (co re function) through
which the public power (sovereignty – jus imperii )
prerogatives are performed: direct performance
of jurisdictional functions, legislative, military,
police, fiscal functions etc. The exclusi ve competence attributed by
the legal regulations interdicted the
delega tion of the public service activities to
the private environment: the interdiction to
entrust to the private sector the sanitary and
social activities existing in some Germa n
lands; the interdiction for French public
hospitals to delegate the activity of medi cal
housing to the private environment etc.

Non-delegable activities

38 Cătălin -Silviu Săraru

§3. Administrative litigation systems in the Member States of the Eu-
ropean Union

3.1. Introdu ctory considerations

The term "contentious" comes from the Latin word contendere = to strug-
gle, to confront, and, from a legal point of view, serves to designate the character
of judicial acts and proceedings involving contradictory debates, quoting parti es,
etc., processes before the courts being likened to Long time "of judicial fights
where each party is fighting contradictory for the recognition and defense of its
law" 107.
The administrative contentious institution comprises all the legal rules
governin g the settlement of disputes in which at least one of the parties is a public
authority, litigation having as its object the violation of a person's right or a legit-
imate interest by an administrative act or by the failure to resolve within a legal
term an application.
Depending on the bodies that deal with administrative litigation, there are
four major administrative litigation systems108:
a) States with administrative jurisdictions who have the State Council on
top, administrative body with consultative an d judicial role (the French system);
b) States with administrative jurisdictions completely separated from the
active and consultative administrations (the German system);
c) States with administrative jurisdictions included in the judicial system;
d) States with no administrative jurisdiction (English system).
We emphasize that there is a limited number of systematic studies on
comparative administrative structures and administrative litigation remedies in
comparative law. Worthy to mention are: Jürgen Schwarze, Droit administratif
européen , 2e éd. Complétée, Bruxelles, Bruylant, 2009; J. Ziller, Administrations
comparees: les systemes politico -administratifs de l’Europe des Douze , Mont-
chrestien, Paris, 1993. In Romania we mention the reference volume of professor
Ioan Alexandru – Drept administrativ comparat (Comparative administrative
law), Lumina Lex, Bucharest, 2000.

107 See Constantin G. Rarincescu, Contenciosul administrativ român , 2nd edition, „Universală”
Alcalay & Co., Bucharest, 1936, p. 105, n.s. 1.
108 See Ioan Alexandru, Tratat de administrație publică , Universul Juridic, Bucharest, 2008, p. 664;
Cătălin -Silviu Săraru, Drept administrativ. Probleme fundamentale ale dreptului public , C.H.
Beck, Bucharest, 2016, p. 429 -435. For an analysis of the courts dealing with administrative
litigation in the Member States of the European Union, see the portal https://e –
justice.europa.eu/content_judicial_systems_in_member_states -16-ro.do (last c onsultation on
01.05.2017) and the site of the Association of State Councils and supreme administrative
jurisdictions (ACA Europa): www.aca -europe.eu (last consultation on 01.05.2017).

European Administrative Space 39

These work points out that although there is no model of public admin-
istration and administrative litigation at the level of the EU Mem ber States, public
administrations in these states share a set of values and principles that make up
the pillars of European administrative law: legality of government action, the
principle of tort liability of public administration, ensuring the rights of the de-
fense, trust and predictability, openness and transparency of procedures, the right
to a fair trial, the principle of legitimate expectations and legal certainty, the prin-
ciple of proportionality, the principle of motivating decisions, etc.
The scie ntific novelty of this article is to capture the historical context
that has led to the creation of distinct administrative contentious systems and to
the analysis of their latest evolutionary tendencies.

3.2. States with administrative jurisdictions who have the State
Council on top, administrative body with consultative and judicial role (the
French system)

In France , even during the Great Revolution of the eighteenth century, a
particular view of the separation of powers in the state was observed. Thus , alt-
hough France was the first state which, following the desideratum of the revolu-
tion, proclaimed the separation of the administrative authority from the judicial
authority by the Law of August 16 -24, 1790, it also ruled through the Law of
September 6 -11 of the same year that administrative litigation will be entrusted
to the administration, establishing from the beginning a duality of jurisdiction – a
judicial and administrative jurisdiction. It is thus clear that the ordinary judge has
no right to disr upt in any way the proper conduct of the administration's activity.
During the Napoleon Bonaparte period, the State Council would be established
as an administrative body, first with advisory functions to the government109, then
by the law of May 24, 1872, a lso with judicial functions of litigation in which the
state administration figured. For a long time, administrative litigation has been
settled in two jurisdictions – prefectural councils in each department, as a first
instance, and the State Council, bot h as a court of first instance and appeal. By
the Decree -Law of June 17, 1938 were included in the competence of prefectural
councils also disputes arising from public contracts. Since 1953, the administra-
tive councils subordinated to the State Council hav e been set up by reorganizing
the former prefect's councils. By Law no. 87 -1127 of 31 December 1987 on the
reform of administrative litigation, which entered into force on 1 January 1989,
three levels of administrative jurisdiction were established – inter-departmental
administrative courts, administrative courts of appeal and the State Council.

109 The State Council is established by the Constitution of December 13, 1799 ( 22 frimaire de l'an
VIII) which in art. 52 states: "Under the direction of the consuls, a State Council is charged with
drafting the draft laws and regulations of the public administration and solving the difficulties
that will arise in administrativ e matters".

40 Cătălin -Silviu Săraru

The dualist law system has given rise to conflicts of jurisdiction between
the courts (represented by the Court of Cassation and the ordinary courts) and
administra tive (represented by the State Council and the administrative courts).
Hence the necessity of establishing a new institution with jurisdictional powers,
namely the Conflict Tribunal110 instituted by art. 89 of the Constitution of 1848
to resolve conflicts of jurisdiction between the two jurisdictions. The Conflict
Tribunal was organized in a first form by the regulation of 28 October 1849 and
the law of 4 February 1850, but having an ephemeral existence, being abolished
during the Bonapartist regime of Napole on III (1852 -1870). He was re -estab-
lished by the law of 24 May 1872, his duties being consolidated by the law of 20
April 1932 and the decree of 25 July 1960. His powers are also reflected in the
organizational structure, the Tribunal being composed of a l aw-based president
in the person of the minister of justice and eight judges, four members of the State
Council and four magistrates of the Court of Cassation. The decisions of the Con-
flict Tribunal have played an important role over the years in shaping t he legal
regime of administrative law institutions. Thus, in its case -law, the Conflict Tri-
bunal recognized the existence of an administrative contract concluded between
two private persons for the purpose of carrying out a public interest mission (the
case Société entreprise Peyrot of 08.07.1963) and deduced the exclusive jurisdic-
tion of the administrative courts in disputes concerning to the public service del-
egation contracts (the „ Blanco ” case of 1873).
It is therefore noted that in France the force and tradition of the executive
power imposed the creation of administrative bodies with autonomous jurisdic-
tional powers of the judiciary, which did not happen, for example, in England.
The French model for organizing administrative jurisdictions also in-
spire d other countries, such as Belgium, Italy, the Netherlands, Luxembourg,
Greece.
In Belgium , in 1946, the State Council was created as an administrative
body, with a double role as in the French model: the role of government consul-
tative body and administra tive tribunal. The State Council judges appeals against
decisions of lower administrative jurisdictions and, unlike the French model, its
decisions could be appealed against by the Court of Cassation.
In Italy , administrative jurisdiction is exercised by t he administrative
courts ( Tribunali Amministrativi Regionali or TAR set up in 1971) and by the
State Council ( Consiglio di Stato ). The State Council established in 1865 is cur-
rently an administrative body with consultative role and jurisdictional role. Con-
flicts of jurisdiction are settled by the Court of Cassation.
In the Netherlands administrative litigations are usually judged by re-
gional courts. In cases involving civil servants and social security issues, the ap-
peal may be brought before a special appe al court – the Central Court of Appeal

110 About the "Conflict Tribunal" see Ioan Leș, Instituții judiciare contemporane , C.H. Beck, Bu-
charest, 2007, p. 623 -624.

European Administrative Space 41

(Centrale Raad van Beroep ) – and in most other cases, in addition to the Admin-
istrative Jurisdictional Division of the Council of State.
In Greece , the State Council first operated between 1835 -1844, then for
a short period from February to November 1865, and was finally established by
the Constitution of 1911 and has been operating since 1929 to date. State Council
decisions have provided the highest legal precedent for lower administrative
courts and have set standar ds of interpretation of the Constitution and laws, con-
tributing to the advancement of legal theory and practice111.
In the Romanian Principalities , Alexandru Ioan Cuza establishes, ac-
cording to the French model, on February 11, 1864 a State Council with legi sla-
tive attributions (drafting of draft laws), administrative duties (administrative
counseling and a disciplinary forum for civil servants) and contentious attribu-
tions administrative. The State Council was abolished by the Law of 12 July 1866
on the divi sion of the various powers of the State Council.

3.3. States with administrative jurisdictions completely separated
from the active and consultative administrations (the German system)

The system of administrative jurisdictions in Germany has begun to de-
velop on the backdrop of the bourgeois movements of the second half of the nine-
teenth century, which imposed the establishment of some constitutions of the
Länder based on the principle of the separation of powers in the state, equality
before the law for all citizens and the recognition of individual freedoms112. Since
1863 autonomous administrative courts, separate from the administration and the
ordinary courts, have been established in the provinces. Subsequently, a higher
court was established between 18 72-1875 – the Prussian High Administrative
Court (O.G.V.).
As a result, the German system of administrative jurisdictions developed
from bottom to top, unlike the French system that developed from top to bottom,
building a whole system of administrative jurisdictions in the territory after being
first created by the Council of the State.
Currently, in Germany the administrative courts ( Verwaltungsgericht ),
the higher administrative courts (Oberverwaltungsgericht) – existing on the Län-
der – and the Federal Administrative Court ( Bundesverwaltungsgericht , estab-
lished on 8 June 1953) are usually competent to hear disputes of administrative

111 See the website of the Greek State Council : www.ste.gr/FL/main_en.htm ( last consultation on
01.05.2017).
112 For details see Ioan Alexa ndru, Drept administrativ comparat, Lumina Lex, Bucharest, 2000, p.
36.

42 Cătălin -Silviu Săraru

litigation. The law on administrative jurisdiction113 enshrines in the first article
the independence of the administrative courts that exercise administrative juris-
diction, distinct from the administrative authority. This system differs in this way
from the French system in which the supreme court in the area of administrative
contentions – the State Council – is an administra tive authority that also has an
advisory role for the Government's decisions.
This system of autonomous administrative jurisdictions, separated from
the administration and ordinary courts, has been taken over from Germany and
other countries, such as Austr ia, Portugal, Sweden.
In Austria , administrative litigation disputes are judged by the High Ad-
ministrative Court ( Verwaltungsgerichtshof ) which verifies the lawfulness of the
public administration and, starting January 1, 2014, the administrative courts. A t
federal level there is the Federal Administrative Court ( Bundesverwaltung-
sgericht ) based in Vienna. There is a Regional Administrative Court ( Landesver-
waltungsgericht ) in each province.
In Portugal , the system of administrative litigation courts includes ad-
ministrative and fiscal tribunals at first instance set up in 1930, the central admin-
istrative courts established in 2003 (north -based in Porto, and south -based in Lis-
bon) and the Supreme Administrative Court set up in 1870 ( Supremo Tribunal
Administrat ivo, which has country -wide competence). Conflicts of jurisdiction
between courts are settled by a Tribunal de Conflito, governed by law in 1933.
In Sweden administrative courts are organized into a three -tier system:
administrative courts, administrative courts of appeal and the Administrative Su-
preme Court established since 1909. In addition, a number of specialized courts
and tribunals have been set up to resolve certain types of cases and matters.
A particular case is Luxembourg , where, following the co nstitutional
reform of 12 July 1996 and the organic law of 7 November 1996, the competence
of the State Council was reduced exclusively to the consultative function and ad-
ministrative tribunals and Administrative Court have been established as inde-
pendent administrative bodies distinct from the ordinary judiciary114.
3.4. States with administrative jurisdictions included in the judicial
system

In some states litigations on administrative disputes are judged by spe-
cialized sections of ordinary courts.

113 Adopted on 21 January 1960, in its consolidated version of 19 March 1991, as amended by Art.
9 of the law of December 9, 2006 of 21, on www.bijus.de ( last consultation on 01.05.2017) .
114 See the site of the Luxembourg administrative courts : http://www.justice.public.lu/fr/organisa-
tion-justice/juridictions -administratives /index.html ( last consultation on 01.05.2017).

European Administrative Space 43

Thus , in Spain the administrative litigation is judged by a whole set of
administrative jurisdictions integrated into the judicial system115:
a) administrative litigation judges
b) central dministrative litigation judges
c) administrative litigation divisions of the Higher Courts of Justice – or-
ganized at the level of each autonomous community (there are 17 autonomous
communities in Spain)
d) the administrative audit division of the National Audience ( Audiencia
Nacional ) – which exercises judicial review of admin istrative decisions taken by
senior officials (Spanish Government ministers, State secretaries) and certain spe-
cialized agencies (Spanish Data Protection Agency, Commission for Competition
Protection etc.)
e) administrative litigation division of the Supre me Court.
In Romania the administrative litigation disputes are judged by the Ad-
ministrative Litigation Sections organized at the level of the tribunals, courts of
appeal and the High Court of Cassation and Justice.

3.5. States with no administrative ju risdiction (English system)

There are also states where litigation of administrative disputes are
judged by ordinary courts, according to rules specific to common law, without a
specialization within distinct sections.
The classic case is the United Kingd om, where the subordination of pub-
lic administration to judicial control has been slow, over several centuries. In the
Anglo -Saxon law, there was no French revolutionary context that promptly im-
posed a limitation on the powers of the sovereign and a clear distinction between
public law and private law. For a long time, the dogma of the irresponsibility of
the crown and certain agents of the Crown has been applied in the UK. Gradually,
the administration's action was subject, within certain limits, to the co ntrol of the
ordinary courts of justice, according to the same rules applied to individuals, the
administration being required to seek the judge's authorization to take certain co-
ercive measures to which the law was entitled only in this way116.
The classica l English constitutional theory, as it was exhibited at the end
of the 19th century by A.V. Dicey117, does not recognize a separate system of
administrative courts (dualist law system) to review the decisions of public bodies

115 See Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Co ntencioso -administrativa – the
document is available online at : http://noticias.juridicas.com/base_datos /Admin/r28 -l29-
1998.t1.html#t1 ( last consultation on 01.05.2017).
116 Ioan Alexandru, Tratat de administrație publică , Universul Juridic, Bucharest, 200 8, p. 657.
117 A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th edition with new
Introduction) (1915), first edition published in 1885 under title: Lectures introductory to the
study of the law of the constitution.

44 Cătălin -Silviu Săraru

(as in France, Germany and many other European countries). Instead, it is con-
sidered that the activity of public administration should be subject to the control
of the ordinary courts of law (a unitary system of law).
The judicial control of English administration is based on the theory of
excess power (doctrine ultra vires ), which allows ordinary tribunals to decide
whether the administration has acted within the limits of its legal power.
However, the theory of excess power ( ultra vires ) must, according to
English case -law, be applied r easonably. In principle, it is admitted that every-
thing that can be regarded honestly as an accessory or as a consequence of what
is authorized by law is not to be regarded as a legal interpretation, as an excess of
power.
In 1965 the Law Commission was cr eated, as an independent statutory
body to propose reform strategies, to codify the positive right and to ensure that
the laws are fair, modern and clear.
At the initiative of the Law Commission, they were unified, starting with
1977 in England and 1980 i n Northern Ireland, through Order 53, the previously
existing procedures, establishing the possibility of bringing a request for judicial
review ( application for judicial review ) against the action of the administration
by which the applicant obtain a Quas hing order , a Prohibition orde r prohibiting
for the future a public administration action (for example, preventing the depor-
tation of a person whose status of immigration was wrongly decided), a Manda-
tory order of the public authority to carry out its task s (for example, requiring the
administration to approve a building plan), a Declaration that clarifies the rights
and obligations of the parties in the process, an order ( Injunction ) through which,
where there is an imminent risk of damage or loss of prope rty, the court may
order interim measures to terminate the action of the administration in order to
protect the injured party's position, also the possibility of seeking Damages under
the conditions permitted by law118.
In the English system, court judgments are sometimes based on natural
justice , discretionary power abuse, or public interest immunity , aimed at disclos-
ing or failing to disclose information necessary to hear the case. It was only in
1968 that the House of Lords decided that it was the responsi bility of the courts
to examine the reality of the public interest invoked by ministers when they re-
fused to provide indispensable documents for the settlement of the cases.
Currently, in the United Kingdom, the ordinary judge of the administra-
tion is the tribunal – the First -tier Tribunal and the Upper Tribunal . Against the
decisions of the Upper Tribunal may appeal to the Court of Appeal (England and
Wales) or the Court of Session (in Scotland).

118 Under English l aw, damages can not be granted solely because a public authority has acted
illegally. In order for a court to pay damages, it is necessary: a) to have a cause of "private law",
such as negligence or breach of a statutory obligation; b) the injured party's request to be based
on European Union law or the 1998 Human Rights Act.

European Administrative Space 45

Lately reforms in the legal system tend to specialized bodie s with juris-
diction that control the activity of public administration. Thus, in England and
Wales the Administrative Court was established as a specialized court of the
Queen's Bench Division of the High Court of Justice of England and Wales hav-
ing jurisd iction over administrative law and exercising control over the courts and
tribunals lower and other public bodies.
In addition to these courts, over 50 specialized courts and administrative
authorities operate in the UK and have jurisdiction over a wide ra nge of areas
(education, labor, pensions, finance and commerce, health, intellectual property,
land, transport, construction , Gambling, etc.) 119.
Other countries that do not traditionally have specialized administrative
litigation courts are Denmark and Norway . In these countries, the Ombudsman's
Institution (People's Advocate) played an important role in defending the citizens'
rights against the abuse of public administration. The institution of the Ombuds-
man was set up in Sweden in 1809 by Parliament, wh ich introduced the Parlia-
mentary Ombudsman's Bureau in the new Constitution, with the role of oversee-
ing the protection of citizens' rights, by checking through inspections and surveys
how public authorities comply with the laws. The institution of the Par liamentary
Ombudsman was taken over by Finland through the 1919 Constitution and by
Denmark in 1954, later taken over by a number of countries (under the name of
mediator, ombudsman or the lawyer of the people).

3.6. Conclusions on Administrative Litigati on Systems in the Mem-
ber States of the European Union

The administrative contentious systems analyzed have developed in line
with historical evolution and legal traditions and have been continually adapted
to the realities existing in each state.
As a res ult of this analysis, we notice that in most states there is a ten-
dency to create judges specialized in administrative law. Practically, under the
conditions of social complexity of today, it is difficult to accept that a judge can
be fully competent in al l civil, commercial, criminal, labor law and administrative
law120. Diversification of regulated social relations has forced the specialization
of judges.
The existence of some courts or sections of the courts specialized in hear-
ing certain disputes does not imply a lack of cooperation between them. In France,

119 For a complete list of them, see: https://en.wikipedia.org/wiki/List_of_tribunals_in_the_ United
_Kingdom (last consultation on 01.05.2017).
120 See Ioan Alexandru (coord.), Drept administrativ , Omnia, Brașov, 1999, p. 482.

46 Cătălin -Silviu Săraru

the collaboration between the judge and the administrative judge is commonplace
in the case of contentious for the interpretation and appreciation of legality121.
The manner in which the administrative contentious is regulated in a
State reflects the degree of democratization of that country, the extent to which
the citizen enjoys legal safeguards to defend himself against abuses by public
authorities.
The regulation of administrative contentious should pr ovide the special-
ized courts with clear procedural rules capable of enforcing the procedural rights
of litigants, with the ultimate aim of protecting substantive rights violated by un-
lawful administrative acts122.

§4. Evolutio n of the level of convergence i n the European adminis-
trative systems

Today, there is a growing debate about the level of convergence of ad-
ministrative systems , especially with the integration of new states into the Un-
ion. It starts from the idea that a certain administrative system can be assessed by
establishing the level at which the European administrative principles are applied,
both in the legislation and in the daily behavior of public authorities and civil
servants. In this respect, these general administrative princip les serve as standards
for measuring trust in public administration, the degree of accountability of civil
servants and public authorities, the effect and viability of procedures used in de-
cision -making, recourse to them, etc.
The level at whic h different countries share and applies these principles
is also relevant for establishing compatibility between their administrative sys-
tems. In other words, they serve as prerequisites for better integration on the one
hand, and on the other hand, as mea sures of the capacity of institutional structures
of public administration in a country to implement the EU acquis.
The concluding conclusion is the following: the high degree of influence
of European administrative principles on national legi slation and the presence of
these principles in the actual behavior of public actors (ie the level of implemen-
tation of the unformalized EU acquis) are representative and are correlated with
the country's ability to to adopt and implement the legally forma lized EU acquis.
It is therefore noted that greater attention needs to be paid to the actions of na-
tional public services, as these are the instruments that ensure or prevent the trans-
fer of these legal administrative principles to public actions and decis ion-making.

121 See Bernard Pacteau, Manuel de contentieux administratif , Presses Universitaires de France, 2e
édition, 2010, p. 119 -120, 136; Jean Rivero, Jean Waline, Droit administratif , 14e édition,
Dalloz, Paris, 1992, p. 199 -200.
122 Verginia Vedinaș, Liliana Vișan, Diana Iuliana Pasăre, Argumentare juridică europeană în
favoarea necesității modificării Legii contenciosului administrativ. Succintă prezentare a Legii
nr. 262/2007 , „Revista de Drept Public” no. 3/2007, p. 77, 78.

European Administrative Space 47

In order for the candidate countries to meet the standards required by the
European Union, it is absolutely necessary to reform the material and procedural
administrative law and the behavior of public services in order to respect the ad-
ministrative principles of trust, predictability, accountability, transparency and
efficiency. In addition, integration into the European Union is a process of evo-
lution. This means that a candidate country has to demonstrate a sufficient level
of progress in order to have a satisfactory comparison with the average level of
the Member States of the European Union. The level of transformation in 1986
(when Portugal and Spain joined the European Union) changed in 2007 (when
Bulgaria and Romania joined the European Union) and will be different in the
future when other candidate countries join the European Union. This means that
it is not enough for candidate countries to reach the current average level of gov-
ernment now in the EU Member States. It is nec essary for them to reach the av-
erage level of the Member States from the time of accession. In other words, a
candidate country must be able to overcome the difference between the current
level of public administration and the average level of the future M ember States
when it is a member of the European Union.
The Community legislative evolution requires the candidate country to
continually assess the degree of consistency of its own legislation with the acquis
communautaire. There are different mechanisms that can measure this degree of
convergence at some point. Thus, for example, the conformity of Romanian and
Community legislation can be achieved through two major processes: the trans-
position of the Community legislation into the Romanian legi slation and the com-
patibility of the national normative acts transposing the acquis communautaire
with the provisions of the Community acts123. Corresponding to the two pro-
cesses, the degree of concordance can be judged on the basis of the calculation of
two indices: the degree of transposition (K T) and compatibility degree (K comp).
In the paper published under the aegis of the European Institute of Ro-
mania – "Impact II Studies", under the coordination of professor Augustin Fuerea,
the following way of calculating these indices is proposed124:

nDT x CSD X nDZT x CSDZ + nAT x CA
KT = x 100
nD x CSD X nDZ x CSDZ + nA x CA

Where: KT = degree of transposition; nDT = number of transposed Directives; nD
= total number of directives; CSD = significance coefficient for the Directives;

123 August in Fuerea (coord.), Evaluarea gradului de concordanță a legislației române cu acquis -ul
comunitar, la nivelul anului 2002, pe capitole de negociere. Studii de impact II , European
Institute of Romania, 2004, p. 13
124 ibidem, p. 12, 13

48 Cătălin -Silviu Săraru

nDZT = number of transposed decisions; nDZ = total number of decisions; CSDZ
= significance coeff icient for Decisions; nAT = the number of other Community
acts transposed; nA = the total number of other Community acts; CA = significance
coefficient for other Community acts (recommendations, notices, letters of in-
tent). Depending on their relevance, Co mmunity acts were divided into three
groups of significance agreed by experts of the Ministry of European Integration:
Directives having the significance coefficient ( CSD) = 1; Decisions having signif-
icance coefficient ( CSDZ) = 0.9; Other community acts (r ecommendations, no-
tices, letters of intent) with significance coefficient ( CA) = 0.2.

Mt x Ct + Mp x Cp + Mc/in x C c/in
Kcomp= x 100
M

Where: Kcomp = degree of compatibility; Mt = national normative acts fully com-
patible with transposed Community acts; Mp = national normative acts partially
compatible with transposed Community acts; Mc/in = national incompatibl e or un-
complicated normative acts; M = national normative acts transposing Community
acts ( M = Mt + Mp + Mc/in); C = compatibility coefficient; Ct = 1 for fully com-
patible normative acts; Cp between 0 and 1 for partially compatible normative
acts; Cc/in = 0 for incompatible normative acts or with unknown compatibility.
European Union legislation is a promoter of the modernization of na-
tional laws. The role of the European Union is to act as a means of inspiration
and trust, working as a factor for accelerating change in the Member States.

Chapter III
Elements of the European Administrative Space in the pri-
mary law of the European Union

Section 1. Elements of the European Administrative Space in the pri-
mary legislation of the European U nion

We will then look at a few elements of the legal architecture of the Euro-
pean Administrative Space covered by the Treaty on European Union (TEU), the
Treaty on the Functioning of the European Union (TfEU) and the Charter of Fun-
damental Rights of the European Union.

§1. Premises of administrative cooperation

According to the provisions of art. 197 TfEU the effective implementa-
tion of Union law by the Member States, which is essential for the proper func-
tioning of the Union, is a matter of common conc ern.
The Union can support Member States' efforts to improve their adminis-
trative capacity to implement Union law. This action may consist, in particular,
in facilitating exchanges of information and civil servants, as well as in support
of training progra ms. However, this support is optional, art. 197 (2), providing
that no Member State is required to use this support.
The European Parliament and the Council, acting by means of regula-
tions in accordance with the ordinary legislative procedure, shall lay do wn the
measures necessary for this purpose, with the exception of any harmonization of
the laws, regulations and administrative provisions of the Member States.

§2. Approximation of administrative laws

According to the provisions of art. 114 TfEU The Eur opean Parliament
and the Council, acting in accordance with the ordinary legislative procedure and
after consulting the Economic and Social Committee, shall adopt the measures
for the approximation of the laws, regulations and administrative provisions of
the Member States concerning the establishment and functioning of the internal
market. These provisions do not apply to tax provisions, those on the free move-
ment of persons and on the rights and interests of employed persons.

50 Cătălin -Silviu Săraru

Art. 114 TfEU also establishe s a procedure for authorization by the Eu-
ropean Commission of Member States to maintain or introduce national provi-
sions derogating from a harmonization measure.
Article 116 TfEU states that if the Commission finds that a disparity be-
tween the laws and reg ulations of the different Member States distorts the condi-
tions of competition in the internal market and therefore causes a distortion to be
eliminated, the Commission consults with Member States concerned. If this con-
sultation does not eliminate the dist ortion in question, the European Parliament
and the Council, acting in accordance with the ordinary legislative procedure,
shall adopt the relevant Directives. Any other useful measures provided for in the
Treaties may be adopted.

§3. Removal of administr ative barriers

The four freedoms enshrined in the Treaty of Rome, the freedom of
movement of goods, services, people and capital, mean that the public admin-
istrations of the Member States, as key elements of implementing and securing
these rights, directl y derived from the Treaties, act in a direction that will lead to
their effective implementation.
With regard to the free movement of workers125, Article 46 (b) TfEU pro-
vides that the European Parliament and the Council, acting in accordance with
the ordinar y legislative procedure and after consulting the Economic and Social
Committee, shall adopt by means of directives or regulations the necessary
measures to achieve the free movement of workers, in particular the abolition of
those administrative procedures and practices the maintenance of which would
be an obstacle to the liberalization of the movement of workers.
As regards the freedom of establishment of nationals of a Member State
in the territory of another Member State, 50 The TfEU provides that, in or der to
achieve freedom of establishment in respect of a particular activity, the European
Parliament and the Council, acting in accordance with the ordinary legislative
procedure and after consulting the Economic and Social Committee, may decide,
by means of directives, to eliminate those procedures and administrative practices
either by national law or by agreements previously concluded between Member
States, the maintenance of which would be an obstacle to freedom of establish-
ment.
In the matter of the fr eedom to provide services art. 56 TfEU states that,
in accordance with the provisions of the Treaty, restrictions on freedom to pro-
vide services within the Union are prohibited in respect of nationals of Member

125 On the notion of "wo rker" in European Union law see Andrei Popescu, Nicolae Voiculescu, op.
cit. (Dreptul social european ), 2003, p. 107 -109.

European Administrative Space 51

States established in a Member State other th an that of the recipient of the ser-
vices. Also, in the matter of the freedom of movement of the capital art. 63 The
TfEU provides that any restrictions on the movement of capital between Member
States and between Member States and third countries are prohi bited.
The Treaty on the Functioning of the European Union also provides in
Art. 74 administrative cooperation for the achievement of the Area of Freedom,
Security and Justice. In order to implement this Space, the Council, acting on a
proposal from the Commission and after consulting the European Parliament,
shall take measures to ensure administrative cooperation between the competent
services of the Member States in the relevant areas and between them and the
Commission.

§4. Compromise clause in publi c law contracts

According to the provisions of art. 272 TfEU the Court of Justice of the
European Union shall have jurisdiction to give judgment pursuant to a compro-
mise clause in a contract concluded by the Union or on its behalf in a public
contract.

§5. Right to good administration

This right first arises in Art. 41 of the Charter of Fundamental Rights of
the European Union adopted at the Nice Summit in December 2000. At the Tam-
pere European Council of October 1999, when the methods and institutions t hat
drafted the Charter were put forward, the European Proposer that the Charter
should mention the right of citizens to the quality of the benefits provided by the
administration. Jacob Söderman, reelected European mediator in 1999, considers
that the ado ption of this sentence will have very significant repercussions among
Member States or the future, causing the 21st century to be the century of good
administration.
According to the provisions of art. 41 of the Charter of Fundamental
Rights of the Europea n Union, everyone has the right to a fair, equitable and rea-
sonable treatment of the Union's institutions, bodies, offices and agencies in re-
spect of his or her problems. This right mainly includes:
(a) the right of any person to be heard before taking any individual meas-
ure likely to affect him / her. This provision is detailed in Art. 16 of the European
Code of Good Administrative Behavior adopted on 6 September 2001 by the Eu-
ropean Parliament, which states that in cases concerning the rights or interests of
individuals, the official shall ensure that the rights of the defense are respected
during each stage of the decision -making process. Each member of the public will
have the right, in cases where a decision affecting his / her rights or interests is to

52 Cătălin -Silviu Săraru

be adopted, to submit written notes and, whenever necessary, to make a verbal
comment before the decision is taken. The European Court of Justice has held
that the observance of the rights of the defense in all open proceedings against a
person constitute s a fundamental principle of Community law and must be en-
sured, even in the absence of any rules on the procedure in question126. This prin-
ciple implies that, before an administrative sanction is imposed against a person,
he may be able to use his point of v iew with regard to the facts in his charge.
(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 it s decisions. This obliga-
tion was still provided by the Treaty of Rome through art. 190. The provision is
developed by art. 18 of the European Code of Good Administrative Behavior.
Thus, any decision taken by the institution, which may adversely affect the rights
or interests of a particular person, will state the grounds upon which it is based,
clearly indicating the relevant facts and the legal basis of the decision. The official
will avoid making decisions based on brief or vague grounds or without indivi d-
ual reasoning. If, due to the high number of persons concerned by similar deci-
sions, it is not possible to communicate in detail the grounds on which decisions
are based, and in cases where standard responses are sent, the official will then
provide the p erson who specifically requested it individual reasoning. The Euro-
pean Court of Justice has repeatedly shown that decisions taken by officials in
the European Institutions must be motivated in a sufficient way ( motiver la déci-
sion de façon suffisante )127. The reasoning must provide the essential elements of
the administrative procedure applied and be sufficiently justified to allow the in-
terested party to appeal against the final decision. Motivation must be in fact and
in law. "Reasons" should be understood as both the legal provisions that entitle
the institutions to take action and the reasons which motivate the institutions to
issue the act in question128. The mention of the legal provision is necessary given
that the Union's institutions can only exercise t hose powers explicitly provided
for in the Treaty.

126 Decision T -450/93 – Judgment 06/12/1994, Lisrestal e.a./ Commission, Rec. 1994, p. II -1177.
127 see Decision C -269/90, Technische Uni versität München -Mitte, Rec. p. I 5469 of 21 november
1991; Case T -167/94 [2002] ECR II -2589 of 18 September 1995 – Nölle v Council and
Commission; Case C -221/998, ECR I -8255 of 10 December 1998 – Schröder et Thaman v
Commission.
128 Pierre Mathijsen, Comped iu de drept european , 7th edition, Bucharest, Club Europa Publishing
House, 2002 , p. 35.

European Administrative Space 53

§6. Transparency of administrative procedures in the institutions of
the European Union

The Treaty on European Union (TEU) enshrines the notion of transpar-
ency in art. 1, par. 2, pointing out that "this treaty marks a new stage in the process
of creating a deeper union among the peoples of Europe, where decisions are
taken in full compliance with the principle of transparency and as close as possi-
ble to citizens.
According to the provisions of art. 11 (2 ) TEU The Union institutions
maintain an open, transparent and regular dialogue with representative associa-
tions and civil society. In order to promote good governance and ensure the par-
ticipation of civil society, the institutions, bodies, offices and age ncies of the Un-
ion shall act with due regard for the principle of transparency (Article 15 (1)
TfEU). It is also foreseen that any citizen of the Union and any natural or legal
person residing or having its registered office in a Member State has a right o f
access to the documents of the Union institutions, bodies, offices and agencies
irrespective of the means of support these documents. The general principles and
limits which, for reasons of public or private interest, govern the exercise of the
right of access to documents shall be laid down by regulations of the European
Parliament and the Council, acting in accordance with the ordinary legislative
procedure (Article 15 (3) TfEU).
Transparency of the decision -making process in the European institutions
is guaranteed by the provisions of Regulation no. Regulation (EC) No 1049/2001
of the European Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents129. The pre-
amble to this Regulation st ates that transparency allows for better citizen partici-
pation in decision -making, as well as greater assurance of the legitimacy, effec-
tiveness and accountability of the administration of citizens in a democratic sys-
tem. Transparency contributes to the st rengthening of the principles of democracy
and respect for fundamental rights.

§7. Right to compensation for damage caused by the institutions and
agents of the European Union

Everyone has the right to reparation by the Union of the prejudice caused
by its institutions or agents in the performance of their duties, in accordance with
the general principles common to the laws of the Member States (Article 41 (3)
of the Charter of Fundamental Rights of the European Union).

129 Published in J.O. L154/31.5.2001.

54 Cătălin -Silviu Săraru

Undertaking the Union's tort liabil ity presupposes that the applicant
proves that the conduct complained of was unlawful to that institution, the exist-
ence of the damage and the existence of a causal link between that conduct and
the damage complained of130. On the other hand, the unlawful na ture of an act
does not automatically render the Union responsible for providing damages re-
pairs. Thus, in the case of legislation involving economic policy measures, the
Union assumes no responsibility for non -contractual obligations only in case of
a suf ficiently serious violation of a higher rule of law to ensure the protection of
the injured party131.

§8. Language of communication with the European Union institu-
tions

Any person may write to the Union institutions in one of the Treaty lan-
guages [the lang uages of the EU Member States, in accordance with Art. 55 (1)
TEU] and must be answered in the same language (Article 41 (4) of the Charter
of Fundamental Rights of the European Union).

§9. Juridical verification of administrative decisions

The Treaty of Rome stipulated in art. 173 an important legal principle:
the right to legal verification of administrative decisions appearing in European
Commission judgments. This is also stipulated in Art. 263 TFEU according to
which the Court of Justice of the Europ ean Union controls the legality of acts of
the Council, the Commission and the European Central Bank, other than recom-
mendations and opinions, and acts of the European Parliament and the European
Council intended to have legal effects vis -à-vis third parti es . It also controls the
legality of acts of Union bodies, offices or agencies intended to produce legal
effects vis -à-vis third parties. In general, the EU Treaties lay down the principle
according to which the acts of the institutions must comply with t he provisions
of the Treaties. In this respect, for example, the Treaties use expressions such as
"in accordance with the provisions of this Treaty" or "under the conditions laid

130 arrêts de la Cour du 29 septembre 1982, Oleifici Mediterranei/CEE, 26/81, Rec. p. 3057, point
16, et du Tribunal du 13 décembre 1 995, Exporteurs în Levende Varkens e.a./Commission, T –
481/93 et T -484/93, Rec. p. II -2941, point 80, du 11 juillet 1996, International Procurement
Services/Commission, T -175/94, Rec. p. II -729, point 44, du 16 octobre 1996, Efisol/Commis-
sion, T -336/94, Rec . p. II -1343, point 30, et du 11 juillet 1997, Oleifici Italiani/ Commission,
T-267/94, Rec. p. II -1239, point 20.
131 Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002 , p. 157. It is cited here in the
ECJ case -law 197/81 joint cases Ludwigshafe ner Walzműhle v. Council and Commission.

European Administrative Space 55

down in this Treaty" in respect of the tasks entrusted to the Union and its i nstitu-
tions. At the same time, individual decisions must be consistent with Union reg-
ulations and directives.
§10. Equal treatment of citizens in relation with the administration

Due to the high degree of abstraction, the doctrine stated that "equality is
its own corollary." Considered rather as a principle of principle than as a principle
of equality equality fulfills a function of "right -guarantee". In the comparative
law, the principle of equality in its modern variant is rather interpreted as a gen-
eral prohibition of arbitrariness, imposed equally on both the legislator and the
administration132.
In the primary legislation of the Union, by art. 124 TfEU shall prohibit
any measure which is not prudential and which gives preferential access to the
financial institutions of the Union institutions, bodies, offices or agencies, central
government authorities, regional or local authorities, other public authorities, or
other bodies or public undertakings in the Member States.
This provision is developed by art. 5 of the European Code of Good Ad-
ministrative Behavior adopted on 6 September 2001 by the European Parliament.
Thus, in handling the public's requests and in making decisions, the official will
ensure compliance with the principle of equal treatment. Peopl e who are in the
same situation will be treated in a similar way.
In the event of a difference in treatment, the official shall ensure that this
is justified by the relevant objective characteristics of the particular case. The
official shall in particular avoid any unjustified discrimination between members
of the public based on nationality, sex, race, color, ethnic or social origin, genetic
features, language, religion or belief, political or other opinion, membership of a
national minority, property , b irth, disability, age or sexual orientation.

§11. Right of petition

The Charter of Fundamental Rights of the European Union enshrines in
Art. 44 right of petition. Any citizen of the Union and any natural or legal person
residing or having its registered office in a Member State has the right to petition
the European Parliament. Also art. 227 TFEU provides that any citizen of the
Union and any natural or legal person residing or having its registered office in a
Member State has the right to address to th e European Parliament, individually
or in association with other citizens or other persons, a petition on a subject which

132 See Simina Elena Tanasescu, Principiul egalității în dreptul românesc , All Beck, Bucharest,
1999, p. 4, 5 and 31.

56 Cătălin -Silviu Săraru

is of direct concern to the Union's fields of activity. In order to apply these pro-
visions, a Petitions Committee has been set up with in the European Parliament133.
According to the provisions of art. 17 of the European Code of Good
Administrative Behavior, the official shall ensure that a decision is taken on each
claim or complaint addressed to the institution within a reasonable time, w ithout
delay, and in any event not later than two months from the date of receipt . The
same rule applies to replies to letters received from the public and to replies to
the administrative notes sent by the official to his superiors, requesting instruc-
tions on the decision to be taken. If, owing to the complexity of the issues raised,
no decision can be taken on a request or complaint within the abovementioned
period, the official shall as soon as possible inform the author thereof. In this case,
a final de cision must be communicated to the author as soon as possible.
A particular case is the exercise of the right of petition by the Community
officials provided for in the Staff Regulations of Officials of the European Un-
ion134. Thus, any person concerned by th e Statute may refer the authority invested
with the appointment power by asking him to make a decision on his or her per-
son. The authority invested with the power of appointment shall communicate its
decision to the person concerned within four months of t he date of the request.
Upon expiry of that period, failure to respond to the request is equivalent to the
implicit rejection decision which may be the subject of a complaint to the same
authority empowered by appointment (Article 90, paragraph 1, of the S tatute). By
means of the right of petition, the person concerned does not appeal against an
act that injustice, but requires the institution to which he belongs, through the
authority entrusted to him with the power of appointment, to make a specific de-
cision on it135. Analyzing art. 90 par. 1 final thesis we note the consecration in
Community law of the implicit or assimilated administrative act consisting of the
refusal of the competent authority to resolve a request.
§12. Inquiry Commission for maladmini stration set up by European
Parliament

Article 226 TfEU provides that, in carrying out its tasks, the European
Parliament may, at the request of a quarter of its constituent members, set up a

133 For information on the Committee on Petitions of the European Parliament, see its website:
http://www.europarl.europa.eu/atyourservice/ro/20150201PVL00037/Peti%C5%A3ii (last
consulted on the 15th of July 2017) .
134 Regulation no 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the
Conditions of Employment of Other Servants of the European Economic Community and the
European Atomic Energy Community (JO P 045 14.6.1962, with subsequent modifications),
http://eur -lex.europa.eu/legal -content/RO/TXT/?uri =CELEX:01962R0031 -20140501 (last
consulted on the 15th of July 2017).
135 Constanța Călinoiu, Verginia Vedinaș, Teoria funcției publice comunitare , Lumi na-Lex,
Bucharest, 1999, p. 189.

European Administrative Space 57

temporary committee of inquiry to examine, without prejudice t o the powers con-
ferred on it by this Treaty, other institutions, bodies, agencies, alleged violation
of law or maladministration in the application of Union law136, unless the alleged
facts are examined by a court and as long as the judicial proceedings are not com-
pleted. The Temporary Committee of Inquiry shall cease to exist by submitting
its report. The arrangements for exercising the right of inquiry shall be determined
by the European Parliament, acting by means of regulations, on its own initiative,
in accordance with a special legislative procedure, after approval by the Council
and the Commission.
Investigation by the investigative commission shall not replace actions
taken by other institutions or bodies on the basis of the powers conferred by the
Treaty. When, for example, the Court of Auditors makes a special report, the
latter can not be contradicted by a report of the Committee of Inquiry and, in
order to avoid this situation, Parliament must consult the institution concerned
before a Commission137. The detailed provisions governing the exercise of the
Parliament's powers of inquiry are set out in Decision 95/167/EC, Euratom,
ECSC of the European Parliament, the Council and the Commission of 19 April
1995 on the detailed rules for the exercise of the European Parliament's right of
inquiry138.

§13. European Mediator. Good and bad administration

The modern regimes of administrative law affirm the principle that the
administration is in the service of the citizens. The Maastricht Treaty est ablished
the European Mediator to defend this principle and to investigate possible cases
of maladministration in the activities of the institutions and bodies of the Euro-
pean Union. It exercises an administrative control mechanism comparable to that
which allows for the control of public authorities at national level by the Om-
budsman or the People's Advocate in most member countries. At present, most
Member States of the European Union have a national mediator. In Germany, the
parliamentary committee respo nsible for examining petitions plays an analogous
role. Italy does not yet have a national mediator, although many draft laws have
been tabled. There is also a mediator at regional or communal level in many

136 see, for example, Parliament's decision of 17 July 1996 setting up a temporary committee of
inquiry to investigate alleged contraventions or maladministration in the implementation of
Community law relating to bovine spon giform encephalopathy (OJ C239 / 1) or Decision (EU)
2016/34 of the European Parliament of 17 December 2015 on the constitution, tasks, numerical
composition and duration of the mandate of the Commission for the Measurement of Emissions
from the Motor Vehi cle Sector (published in OJ L 10/2016).
137 Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002 , p. 77.
138 Published in JO L 113, 19.5.1995.

58 Cătălin -Silviu Săraru

Member States, for example in the Spanish autonom ous regions, the Italian re-
gions and the German Länder.
The first European mediator was appointed in 1995 after the 1994 par-
liamentary elections.
The institution of the European Ombudsman is now governed by Article
228 of the Treaty on the Functioning of the European Union (TfEU) and by the
European Parliament's decision on the regulations and general conditions govern-
ing the performance of the Ombudsman's duties139.
The European Ombudsman, elected by the European Parli ament, is em-
powered to receive complaints from any citizen of the Union or from any natural
or legal person residing or having its registered office in a Member State con-
cerning cases of maladministration in the work of the institutions, bodies, offices
or agencies of the Union, with the exception of the Court of Justice of the Euro-
pean Union in the exercise of its judicial functions. He investigates these com-
plaints and draws up a report on them.
In accordance with his mission, the Ombudsman conducts inves tigations which
he considers justified on his own initiative or on the basis of complaints addressed
to him directly or through a Member of the European Parliament, unless the al-
leged facts are or have been the subject of proceedings court. Where the Ombud s-
man finds an instance of maladministration, he shall refer the matter to the insti-
tution, body, office or agency concerned, which shall have a period of three
months to communicate his point of view. The Ombudsman then submits a report
to the European Par liament and the institution concerned. The complainant is in-
formed of the outcome of these investigations.
Each year, the Ombudsman presents a report to the European Parliament
on the results of his investigations.
The Ombudsm an is elected, after each election of the European Parlia-
ment, during the parliamentary term. Its mandate may be renewed.
The Ombudsman may be dismissed by the Court of Justice on a com-
plaint by the European Parliament if he no longer fulfil ls the conditions required
for the performance of his duties or has committed a serious misconduct.
The Ombudsman exercises his functions in complete independence. In
the performance of his / her duties, he / she does not request or accept i nstructions
from any government, institution, body, office or agency. During the performance
of his / her duties, the Ombudsman may not engage in any other occupation, re-
munerated or not.
According to the activity report of the European Omb udsman for
2014140, it is noted that most of the complaints concerning the institutions and

139 Adopted by Parliament on 9 March 1994 (OJ L 113, 4.5.1994, p. 15) and amended by its Deci-
sions of 14 March 2002 (OJ L 92, 9.4.2002, p. 13) and of 18 June 2008 (OJ L 189, 17.7.2008,
p. 25).
140 The report can be found here: www.ombudsman.europa.eu/ro/activi ties/annualreport.faces/ro/
59959/html. bookmark (last consulted on the 15th of July 2017).

European Administrative Space 59

bodies of the European Union concern: lack of transparency or refusal of access
to information; the Commission's work as guardian of the treaties, co -competition
and selection procedures, breaches of the Staff Regulations, aw ard and execution
of contracts.

Source: www.ombudsman.europa.eu/ro/activities/annualreport.fa ces/en/59959/html.bookmark
In 2014, most of the investigations carried out by the European Ombuds-
man concerned the Commission (59.6%), followed by EU agencies (13.7%), the
European Personnel Selection Office (9.4%) and others, down.

60 Cătălin -Silviu Săraru

Source: www.ombudsman.europa.eu/ro/activities/annualreport.faces/en/59959/html.bookmark

The European Ombudsman can also open an inquiry on his own initiative
without the need for a prior complaint. He must, however, use this prerogative
with moderation and generally when the frequency of complaints relating to a
particular issue allow generalization. The main initiatives they can take are: ac-
cessibility of documents, recru itment in the EU institutions, procedures for deal-
ing with citizens' complaints about crimes against EU law and delays in payment
by the European Commission.
Almost 70% of complaints to the European Ombudsman go beyond its
field of competence because it co ncerns the national, regional or local govern-
ments of the Member States on the implementation of many aspects of Commu-
nity law and policies. In this case, the European Ombudsman will direct com-
plaints to mediators and similar bodies in the Member States. I n fact, individual

European Administrative Space 61

rights guaranteed by EU law must of course be respected by public authorities of
any rank and national level. That is why, since 1996, the European Mediator has
launched cooperation with national mediators and similar bodies in the candi date
countries to the European Union.
The Treaty of Amsterdam explicitly outlined the constitutional principles
on which the Union is founded: freedom, democracy, respect for human rights
and fundamental freedoms, the rule of law. It is important that memb er countries
and candidate countries recognize the contribution of mediators and similar bod-
ies in the application of these principles, the observance of which is an explicit
condition of the EU Accession Treaty.
The European Mediator's mission is to attac k the "grievous administra-
tion" or in other words the mismanagement ( mauvaise administration ). This term
is not defined in any text in primary legislation. That is why the European Om-
budsman proposed, following consultation with the national mediators in t he
Member States, the following definition: "there is a bad administration when a
public body does not act in accordance with a rule of law or a principle imposed
on it" 141. This definition is broad enough because the mediator's competence in-
cludes respect for fundamental rights, principles of administrative law and good
administration. In 1997, the European Parliament adopted a resolution approving
this definition. In order to effectively protect citizens' rights, it is important to
explain the rules of goo d administration in order to know what the deviations
from it are. In July 1999, following an inquiry made on its own initiative, the
European Ombudsman launched a public Code of Good Administrative Behavior
applicable to Community institutions and bodies. The Code was adopted on 6
September 2001 by the European Parliament. This code contains the great prin-
ciples of European administrative law, such as legality, the right to a prior hear-
ing, proportionality and the protection of legitimate aspirations.

§14. Application of administrative sanctions

The Treaties recognize the Union's direct power of sanction only in ex-
ceptional cases. In general, if administrative sanctions are provided for by EU
law, it is up to Member States to implement them142.
The sanction s applied directly by the Union institutions focus mainly on
competition. Thus art. 103 (2) lit. (a) TFEU allows the Council to impose fines
and periodic penalty payments to ensure compliance with the Treaty rules on
agreements and abuse of a dominant posi tion.

141 Jacob Sőderman, Le Médiateur de l’UE et la bonne administration , in „Tribune de la Gestion
Publique, Bulletin bimestriel pour les praticiens del’administration publique des pays d’Europe
centrale et orientale”, vol. VI, n. 1 -2000, SIGMA —OCDE, Paris.
142 Augustin Fuerea, Drept comunitar european. Partea generală . All Beck, Bucharest, 2003, p.
183

62 Cătălin -Silviu Săraru

The Commission is entitled to impose fines for infringement of proce-
dural or substantive competition rules by undertakings, fines which may amount
to up to 10% of the undertaking's turnover in the financial year preceding the
decision143. Obtaining amo unts representing fines may be subject to forced exe-
cution by national authorities.
Thus, art. 299 TFEU states that acts of the Council, of the Commission
or of the European Central Bank imposing a pecuniary obligation on persons
other than the Member Stat es are enforceable. Enforced enforcement is governed
by the rules of civil procedure in force in the State in which this procedure takes
place. The decision shall be enforceable without any formalities other than the
verification of the authenticity of tha t title by the national authority which the
government of each Member State designates for that purpose and the designation
of which is brought to the attention of the Commission and the Court of Justice
of the European Union European. Once these formaliti es have been completed,
the party concerned may, upon application by the party concerned, enforce en-
forcement by notifying the competent authority directly in accordance with na-
tional law. Enforcement may be suspended only on the basis of a decision of the
Court. However, review of the legality of enforcement measures is a matter for
the national courts.
The administrative penalties applied by the Member States aim to protect
the Union's financial interests in the conduct of EU policies (in particular the
management of aid under the common agricultural policy) 144. The application of
these administrative sanctions enjoys a common regime despite the diversity of
national administrative practices, as enshrined in EU regulations145, the principle
of the non -retroac tive character of the decision to impose the sanction, the exist-
ence of a four -year limitation period, the drawing up of a list of sanctions, when
criminal proceedings are initiated, etc.

143 Augustin Fuerea, op. cit. (Drept comunitar european) , 2003, p. 183. See Regulation (EC) No
1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in
Articles 81 and 82 of the Treaty.
144 Idem , p. 184.
145 see Council Regulation (EC, Euratom) No. Council Regulation (EC) No 2988/95 of 18 Decem-
ber 1995 on the protection of the European Communities' financial interests (OJ No L 312 of
23.12.1995).

Chapter IV
Components of the European Administrative Space in the
secondary legislation of the European Union

Components of the European Administrative Space are naturally also
found in the secondary legislation implementing the European Union treaties
(regulations, directives, decisions, recommendations) as well as in the case -law
of the Court of Justice of the European Union principles of European Adminis-
trative Law. Thus, in secondary legislation we encounter regulations on the legal
means of action of the European administration (unilateral administrative acts and
administrative contracts for public procurement and concessions) and regulations
on staffing (the public function in the institutions of the European Union).

Section 1. The legal means of action of the European Union admin-
istration

§1. Unilateral adm inistrative acts in the European Union law. Prin-
ciples underlying the adoption and application of administrative acts

Unilateral administrative acts emanate from EU institutions, on the basis
of the power they have been invested on, based on and for the p urpose of imple-
menting treaties, regulations and directives. Paul Negulescu pointed out that in-
ternational bodies issue normative , regulatory (general, objective and impersonal)
administrative acts, such as internal staff statutes146 (for example, the Staff Reg-
ulations of the European Investment Bank or the Staff Regulations of the Institute
for Security Studies of the European Union147). These bodies may also issue sub-
jective acts, ie. individual administrative acts, which make individual application
of a gene ral rule. Through these latter acts it is possible to establish, modify or
suppress individual legal situations. Such are: acts of appointment, advancement,
disciplinary action or dismissal of officials of these bodies, reports on the finding
of contravent ions and fines by competent officials.
At EU level there is not yet an overall regulation of unilateral adminis-
trative acts. The general framework for the existence of the administrative act is

146 Paul Negulescu, Principes du Droit International Administratif , Académie de Droit Internatio-
nal, Librairie du Recueil Sirey, Paris, 1935, p. 94.
147 Publis hed in J.O. L. 039 of 09/02/2002.

64 Cătălin -Silviu Săraru

woven around the principles developed especially by the Europe an Court of Jus-
tice.
Decisions adopted by the Commission or the Council, sources of EU sec-
ondary law, are considered to be "administrative acts" of the European Union
because their adoption corresponds to situations in which national administra-
tions are ob liging citizens – by adopting an administrative act – to enforce the law
to a particular case148. By such a decision, the EU institutions may require a mem-
ber country or a citizen to act or not to act, conferring rights or imposing obliga-
tions on them.
The d ecision concerns in particular the application of the provisions of
the treaties to particular situations. It is assimilated to national acts and consti-
tutes, in the hands of the Community authorities, an instrument for the practical
implementation by Comm unity law of Community law. A decision may establish
an objective for one or more States, the achievement of which is due to the adop-
tion of national measures with international influence (eg the decision to acceler-
ate the abolition of customs duties). The decision is presented as an indirect leg-
islative instrument which does not exist without a directive. But, unlike the di-
rective, the decision is mandatory in all its elements according to art. 288 par. 4)
TfUE, not only in terms of the result to be achiev ed, but also the choice of the
legal form of implementation within the national legal order.
The European Court of Justice considered that the main criterion for dis-
tinguishing between administrative acts and regulations should be sought in the
degree of g enerality of the act in question149. Thus, administrative decisions con-
tain provisions which directly and individually concern certain subjects (certain
natural or legal persons), their essential feature being the limitation of the recipi-
ents to whom they ar e addressed. The normative regulations do not address indi-
vidualized, designated or identifiable recipients, containing general and abstract
provisions, addressing a broad category of persons. An association which repre-
sents a category of natural or legal persons (trade union, employer, etc.) can not
be individually regarded by an act that affects the general interests of this cate-
gory (so the act addressed to it will be of a normative nature).
The implementing regulations adopted by the Commission for the imple-
mentation of the basic regulations can be equated with regulatory administrative
acts. Thus, through the procedure for implementing acts (Article 291 TfEU), the
Commission may be authorized to adopt regulations for the implementation of a

148 Andrei Popescu, Nicolae Voiculescu, Dreptul social european , Romanian Tomorrow Publishing
House, 2003, p. 87; Florian Coman, Drept comunitar european , 2nd editiona, Universul Juridic,
Bucharest, 2003, p. 68; Ion P. Filip escu, Augustin Fuerea, Drept instituțional comunitar
european , 4th edition, Actami, Bucharest, 1999, p. 38, 39.
149 Arrêt de la Cour du 14 décembre 1962. Fédération nationale de la boucherie en gros et du com-
merce en gros des viandes et autres contre Conseil de la Communauté écono mique européenne.
Affaire 19/62 à 22/62. Recueil de jurisprudence édition française 1962 page 00943.

European Administrative Space 65

legislative act requiring uniform implementation within the EU. The Commis-
sion's implementing powers should be exercised in accordance with Regulation
(EU) No 182/2011 of the European Parliament and of the Council150.
The European Parliament and the Council, acting in a ccordance with the
ordinary legislative procedure and after consulting the Economic and Social
Committee and the Committee of the Regions, may adopt implementing regula-
tions for the European Social Fund (under Article 164 TfEU) and the European
Regional De velopment Fund Article 178 TfEU).
Implementing regulations are legal acts whose validity depends on a
"basic regulation". The basic Regulation lays down the basic rules and the Imple-
menting Regulation lays down certain technical provisions.
In assessing th e legal nature of acts issued by the Council or the Com-
mission, not only the official name of the acts (regulation, directive, decision,
etc.) is taken into account but, first, the object and content of the act must be taken
into account151.
As regards the p rocedure for drafting administrative acts, rules on the
formation and expression of the will of the EU institutions are laid down in the
treaties and interpretations of the European Court of Justice and are not left to
any Member State or institutions as s uch.
In the drafting of the administrative act an important part is the motiva-
tion of the manifestation of will of the administration. Irrespective of the legisla-
tive or individual nature of the act, it must be stated in an explicit, succinct, clear
and re levant manner that the addressee or addressees can understand the rationale
which led to its issue (Court of Justice judgment No 24/62).
The Administrative Act, once adopted by the competent authority, ap-
plies the principle of intangibility , which is an es sential factor for legal certainty
and the stability of legal situations in the Community legal order. The rigorous
and absolute observance of this principle makes it possible to obtain the certainty
that, prior to adoption, the act can be altered only in accordance with the rules of
jurisdiction and procedure and that, as a consequence, the act notified or pub-
lished constitutes an exact copy of the act adopted, the will of the competent au-
thority152.

150 Published in JO L 55, 28.2.2011.
151 Arrêt de la Cour du 14 décembre 1962. Confédération nationale des producteurs de fruits et
légumes et autres contre Co nseil de la Communauté économique européenne. Affaires jointes
16/62 et 17/62. Recueil de jurisprudence édition française 1962 page 00901.
152 Arrêt du Tribunal de première instance (deuxième chambre) du 27 février 1992. BASF AG et
autres contre Commission de s Communautés européennes. Concurrence – Notions d'accord et
de pratique concertée – Procédure – Compétence – Règlement intérieur de la Commission –
Inexistence de l'acte. Affaires jointes T -79/89, T -84/89, T -85/89, T -86/89, T -89/89, T -91/89,
T-92/89, T -94/89, T -96/89, T -98/89, T -102/89 et T -104/89. Recueil de jurisprudence 1992
page II -00315.

66 Cătălin -Silviu Săraru

Administrative normative acts shall be signed by the Presi dent of the in-
stitution which adopts them, shall be published in the Official Journal of the Eu-
ropean Union and shall enter into force on the date stated in their text or, in the
absence thereof, on the twentieth day following the publication according to art.
297 (2) TfEU
Individual administrative acts are notified to recipients and take effect
from the date of notification. The notification shall be deemed to have taken place
from the date on which the document was communicated to the addressee and the
latter was in a position to become aware of it153.
The administrative acts of the European institutions enjoy the presump-
tion of legality in the absence of any indications capable of calling into question
that legality154. By the Algera judgment of 12 July 1957, European jurisprudence
enshrines the principle of the proportionality of the effects of nullity in admin-
istrative law, in accordance with the purpose of the law. Thus, it is stated that "the
partial illegality of an administrative act does not justify the withdrawal of the act
in its entirety [but only of the lawful part of the act] than in the case where the
withdrawal of the unlawful part would have the effect of losing the justification
of the act thus issued"155.
The annulment by a European Court of Jus tice of a decision of an institu-
tion on the ground that there is a procedural defect with regard to the way in
which it is adopted does not affect preparatory acts (administrative acts prior to
the issuance of the act) made by other institutions. These pre paratory acts may be
used to issue another administrative act156.
The administrative acts adopted by the EU institutions are subject to the
presumption of validity157. All legal subjects have a duty to recognize the full
effectiveness of acts of the EU institu tions as long as their invalidity has not been
established by the European Court of Justice and to enforce the enforceability of

153 Arrêt de la Cour du 21 février 1973. Europemballage Corporation et Continental Can Company
Inc. Contre Commission des Communautés européennes. Affaire 6 -72. Recueil de jurispru-
dence 1973 page 00215.
154 Arrêt du Tribunal de première instance (juge unique) du 13 juillet 2000. Helga Griesel contre
Conseil de l'Union européenne. Fonctionnaires – Refus de promotion – Motivation – Examen
comparatif des mérites des candidats .
Affaire T -157/99. Recueil de jurisprudence – fonction publique 2000 page IA -00151; II -00699.
155 Arrêt de la Cour du 12 juillet 1957. Mlle Dineke Algera, M. Giacomo Cicconardi, Mme Simone
Couturaud, M. Ignazio Genuardi, Mme Félicie Steichen contre Assembl ée Commune de la
Communauté européenne du charbon et de l'acier. Affaires jointes 7/56, 3/57 à 7/57. Recueil
de jurisprudence édition française 1957 page 00081.
156 Arrêt de la Cour (cinquième chambre) du 13 novembre 1990. The Queen contre Minister of
Agric ulture, Fisheries and Food et Secretary of State for Health, ex parte: Fedesa e.a. Demande
de décision préjudicielle: High Court of Justice, Queen's Bench Division – Royaume -Uni. Subs-
tances à effet hormonal – Validité de la directive 88/146/CEE. Affaire C -331/88. Recueil de
jurisprudence 1990 page I -04023.
157 See also Ovidiu Ținca, Drept comunitar general , 2nd ed., Didactic and Pedagogical Publishing
House R.A ., 2002, p. 228.

European Administrative Space 67

acts as long as the Court has not decided to postpone their execution158. However,
an administrative act hit by serious and obvio us mistakes loses its presumption
of validity and is considered as non-existent . Such non -existent acts are, for ex-
ample, an administrative act which does not establish with sufficient certainty the
exact date from which it is likely to produce legal effec ts (the date from which it
is considered to be incorporated in the Union legal order), an act which, due to
successive changes has the object of having lost the obligatory content of moti-
vation, an act that can not be defined and controlled without strikin g the ambigu-
ity of the extent of the obligations imposed on its recipients, an act that does not
identify with certainty who the author of the version its definitive. Such acts do
not produce any legal effects and can be challenged outside the term of admi nis-
trative or judicial appeal159.
The issuing institution may not suspend the validity of an administrative
act except by a written manifestation of its clear and unambiguous will160.
Withdrawal of an administrative act of an institution of the Union may
resul t only from an act of the same institution which either expressly cancels an
earlier decision or replaces the precedent161. The Court has held that the retroac-
tive withdrawal of a legal act conferring subjective rights or similar advantages
is contrary to ge neral principles of law162. Withdrawal of the illegal act is permit-
ted if it occurs under certain conditions strictly specified by the Court: withdrawal
of the act within a reasonable time (a period of two months or more from the issue
must be considered rea sonable and a period longer than two years must be con-
sidered excessive compliance – Judgment T -20/96), observance of the principle

158 Arrêt de la Cour du 21 septembre 1989. Hoechst AG contre Commission des Commun autés
européennes.
Concurrence – Règlement n. 17 – Vérification – Droit fondamental à l'inviolabilité du domicile
– Motivation -Astreintes – Vices de procédure. Affaires jointes 46/87 et 227/88. Recueil de ju-
risprudence 1989 page 02859.
159 Arrêt du Tribunal de première instance (deuxième chambre) du 27 février 1992. BASF AG et
autres contre Commission des Communautés européennes. Concurrence – Notions d'accord et
de pratique concertée – Procédure – Compétence – Règlement intérieur de la Commission –
Inexiste nce de l'acte. Affaires jointes T -79/89, T -84/89, T -85/89, T -86/89, T -89/89, T -91/89,
T-92/89, T -94/89, T -96/89, T -98/89, T -102/89 et T -104/89. Recueil de jurisprudence 1992 page
II-00315.
160 Arrêt de la Cour (première chambre) du 13 juillet 1972. Alo Heine mann contre Commission
des Communautés européennes. Affaire 79 -71.Recueil de jurisprudence 1972 page 00579.
161 on the principle of the revocation of unlawful administrative acts in Community law see Ovidiu
Ținca, op. cit. (Drept comunitar general) , 2002, p. 228. Cited here is the judgment of the ECJ
Herpels v Commission of 9 March 1978 in which the Court ruled tha t, in order to revoke an
erroneous decision, very strict conditions must be met, contrary to the repeal of such a decision,
with effects for the future, which is always possible.
162 Arrêt du Tribunal de première instance (cinquième chambre) du 5 décembre 20 00. Anthony
Gooch contre Commission des Communautés européennes. Fonctionnaires – Recours en annu-
lation – Responsabilité non contractuelle de la Communauté – Lieu de recrutement – Retrait d'un
acte administratif – Présomption de légalité d'un acte adminis tratif. Affaire T -197/99. Recueil
de jurisprudence – fonction publique 2000 page IA -00271; II -01247.

68 Cătălin -Silviu Săraru

of legal certainty and observance of the principle of the legitimate expectation of
the beneficiary of the act which conside red the appearance of its legality163. The
decisive moment from which it is believed that there is confidence in the apparent
legality of the act in the conscience of the addressee is the moment of notification
of the act and not the date of its adoption or withdrawal164.
The amendment or repeal of the administrative act is made by the compe-
tent body to issue it, unless express regulation confers that competence on another
body165 (Case T -251/00 of the Third Chamber of the Court of First Instance).

•

The notion of unilateral administrative act is not understood in the same
way in EU member states. Thus, in France, Spain, Portugal, Italy, etc. it encom-
passes regulatory acts and individual acts, while in Germany, regulatory acts are
not considered administrative a cts.

§2. Administrative contracts in the European Union law

2.1. Evolution of EU legislation on of public procurement contracts
and concessions

The logic of the European Communities was right, since their creation,
the economy, the single market, promot ing fair competition between markets and
services166.
The administrative contracts of procurement and concessions involving
substantial funds, one of the main sources that feed the ongoing process of eco-
nomic and social development of Member States. The lack of open and effective
competition in public contracts was long one of the most obvious obstacles to
completing the internal market in the European communities.

163 Arrêt du Tribunal de première instance (cinquième chambre) du 21 juillet 1998. John Mellett
contre Cour de justice des Communautés européennes. Fonctionn aires – Recevabilité – Titula-
risation – Confiance légitime – Egalité de traitement. Affaires jointes T -66/96 et T -221/97. Re-
cueil de jurisprudence – fonction publique 1998 page IA -00449; II -01305.
164 Arrêt de la Cour (sixième chambre) du 17 avril 1997. Henr i de Compte contre Parlement euro-
péen. Fonctionnaires – Décision reconnaissant une maladie professionnelle – Retrait d'un acte
administratif – Confiance légitime – Délai raisonnable – Pourvoi. Affaire C -90/95 P. Recueil de
jurisprudence 1997 page I -01999.
165 See also Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002 , p. 36 -39, with regard
to the application and enforcement of Community administrative acts.
166 See Georges Vlachos, Droit public économique français et européen , 2e édition, Dalloz, Par is,
2001 , p. 222.

European Administrative Space 69

First Community law which regulated this field was Directive 70/32 EEC
of 17 December 1969 on p ublic procurement. This directive only wanted to ob-
tain a coordination of national rules not provide for the removal of inequalities in
national laws and has not implemented at the level of public contracts, the Com-
munity principles on the free circulation of goods, works and services167.
A step forward was made by Directive 71/305 of 26 July 1971 concerning
the award of public works contracts and Directive 77/62 of 21 December 1976
concerning the award of public contracts. These laws have imposed certain obl i-
gations towards the establishment of a common market:
– Announcing the public invitation competitions between entrepreneurs
by limiting direct agreement procedures;
– Publication in an official journal of the European public procurement
contract notices;
– Inclusion in documents accompanying technical specifications of the
contract, which may refer to national or European standards.
This regulation, however, was insufficient, leaving many unresolved is-
sues168:
– The existence of thresholds for application of the Directives excessively
high;
– Non-coercive character of the selection of procurement procedures,
technical specifications and criteria for awarding contracts;
– The narrow confines for auctioning, which was detrimental to foreign
bidders;
– Limitatio n to a specific area, given that the regulations did not include
service contracts; and defense equipment contracts; public service contracts in
the water, energy, transport and telecommunications;
– Contain no appeal procedure, although appeals in nationa l systems are
often inadequate and differs significantly specifics law.
Community legislation has evolved further in the following directions169:
a) improving existing directives:
– Directive 77/62 of 21 December 1976 was supplemented by Directive
88/255 of 5 March 1988 concerning the award of public contracts;
– Directive 71/305 of 26 July 1971 Directive 89/440 was completed July
18 1989 on the awarding of public works;
b) regulation of sectors that were not previously covered:
– It was approved Directive 92/50 of 18 June 1992 on the coordination of
procedures for the award of public service contracts;

167 Dumitru Cernei, Studiu comparativ privind achizițiile publice , Chișinău, 2002, under the auspi-
ces TACIS, p. 3.
168 Idem.
169 Ibidem, op. cit. , p. 4.

70 Cătălin -Silviu Săraru

– Directive 90/531 was adopted on 17 September 1990 on the procure-
ment procedures of establishments operating in the water, energy, transport and
telecommunications.
At June 14, 1993 were approved three basic directives for the three sec-
tors of government procurement:
– Directive 93/36 / EEC of 14 June 1993 on the coordination of proce-
dures for the award of public supply contracts;
– Directive 93/37 / EEC of 14 June 1993 on the coordination of proce-
dures for the award of public works contracts;
– Directive 93/38 / EEC of 14 June 1993 on the procurement procedures
of establishments operating in the water, energy, transport and telecommunica-
tions.
These directives have been amended subsequently by other laws.
Review procedures have been regulated by Directive 89/665 / EEC of 21
December 1989 on the coordination of laws, regulations and administrative pro-
visions relating to enforcement proceedings for the appeal against the award of
public supply contracts and public works170 and Directive 92/13/EEC of 25 Feb-
ruary 1992 coordinating the laws, regulations and administrative provisions re-
lating to the application of Community rules on the procurement procedures of
entities operating in the water, energy, transport and telecommunications171. Alt-
hough they have undergone many changes, Directives 89/665 / EEC and 92/13 /
EEC are in effect today.
In 2004 EU legislation on public contracts has been revised and simpli-
fied. Thus the whole field of public procurement has been synthesized in two
directives:
– Directive 18 / EC / 2004 of the European Parliament and of the Council
of 31 March 2004 on the coordination of procedures for the award of public works
contracts, good s and services172 takes over and completes the provisions of Di-
rectives 93/36 / EEC, 93/37 / EEC and 92/50 / EEC, the directives being repealed.
– Directive 17 / EC / 2004 of the European Parliament and the European
Council of 31 March 2004 coordinating the procurement procedures of entities
operating in the water, energy, transport and postal services173 which repeals Di-
rective 93/38 / EEC.
The purpose of this review it was to modernize and simplify the Direc-
tives, aiming to:
– Unification and consolidation cl assic directives on supplies, services
and works into one with identical rules and procedures for all three sectors;

170 Published in the Official Journal of the European Communities, series L, no. 395 of Dece mber
30, 1989, as amended and supplemented.
171 Published in the Official Journal of the European Communities, series L, no. 76 of 23 March
1992 with subsequent amendments.
172 Published in J.O. L 134 of 30 April 2004.
173 Published in J.O. L 134/1 of 30 April 2 004.

European Administrative Space 71

– Adapting directives to existing practices in Member States and the Eu-
ropean Court of Justice;
– Allow the use of electronic communication , electronic procurement of
new technologies and procedures more flexible.
In 2014 the European Union appeared November 3 directive on public
contracts:
– Directive 2014/23 / EU of the European Parliament and of the Council
of 26 February 2014 on the award of concession contracts174;
– Directive 2014/24 / EU of the European Parliament and of the Council
of 26 February 2014 on public procurement and repealing Directive 2004/18 /
EC175;
– Directive 2014/25 / EU of the European Parliament and of the Council
of 26 February 2014 on procurement by entities operating in the water, energy,
transport and postal services and repealing Directive 2004/17 / EC176.
Member States have had a period of 24 months to transpose the Directive
into national laws.
The new directive rede fines the concept of contracting authority, refer-
ring to authorities sub -central (regional or local) which will benefit thresholds,
rules of advertising and deadlines more flexible, determine the conditions under
which it can change public procurement cont ract, shortening minimum public
tender procedure and organization first established general principles to be ob-
served in the award, performance and termination of concessions.

2.2. Considerations about the purpose of EU regulations in the field
of adminis trative contracts

With regard to, EU regulations in the field of public contracts and con-
cessions we make the following remarks177:
– European directives on public contracts establish general principles to
give unity of economically European cons truction178: the prohibition provisions
and discriminatory practices with respect to foreigners, especially in order to ben-
efit from the concessions or authorizations concession issued State or other public

174 Published in the Official Journal of the European Union L 94 of 28.3.2014.
175 Published in the Official Journal of the European Union L 94 of 28.3.2014.
176 Published in the Official Journal of the European Union L 94 of 28.3.2014.
177 See Cătălin -Silviu Săraru, Contractele administrative. Reglementare. Doctrină. Jurisprudență ,
C.H. Beck Publishing House, Bucharest, 2009 , p. 425 -432.
178 For details see Cătălin -Silviu Săraru, Contractele publice, in Ioan Alexandru (coord.), Dreptul
admini strativ în Uniunea Europeană , Lumina Lex Publishing House, Bucharest, 2007, p. 308 –
314; Martin Trybus, Public contracts in European Union internal market law: foundations and
requirements , in Rozen Noguellou, Ulrich Stelkens (coord.), „Comparative Law on P ublic Con-
tracts”, Bruylant, Bruxelles, 2010, p. 81 -119.

72 Cătălin -Silviu Săraru

law (general programs adopted by EEC December 18, 1 961); providing guaran-
tees for fair competition through transparent tender procedures and award (Di-
rective 93/37 / EEC); respect for the election procedure of the contractor, the
principles179 of non -discrimination, equal treatment, transparency, proportiona l-
ity180 and conclusion of the contract intuitu personae181.
– European legislation in this area aims at opening to competition of
procedures for awarding public contracts for all enterprises across the Euro-
pean Union182. The role of EU regulation from economic d esire is to overcome
national boundaries giving freedom of movement and economic operators, on the
other hand, to prohibit discrimination between public and private operators183.
According to the mutual recognition principle , the Member States must accept
the products and services provided by operators in other EU countries, where
products and services are standards set by the law of the Member State of
origin184. Transparency of procedures for awarding contracts is an underlying
principle of the rules prohibit ing discriminations between operators185. Then, of
the EU regulations on public contracts are outlined clearly the principle of equal

179 According to para. (2) of the preamble to Directive no. 2004/18 / EC award of contracts con-
cluded in the Member States of the Union on behalf of the State, local authorities and other
bodies governe d by public law must respect the principles of the EC Treaty and in particular
the free movement of goods, freedom of establishment and the principle of freedom to provide
services and the principles deriving therefrom, such as equal treatment, non -discrim ination,
mutual recognition, proportionality and transparency.
180 See Dumitru -Daniel Șerban, Principiul proporționalității în domeniul achizițiilor publice ,
„Dreptul” no. 9/2007, p. 77 -99 where the author analyzes the concept of proportionality in
Community law and public procurement law in Romania.
181 See Communication interpretation of Commission on concessions under Community law, pub-
lished in OJ C 121 of 04.29.2000.
182 See also Pierre Mathijsen, Compediu de drept european , 7th edition, Bucharest, Club Euro pa
Publishing House, 2002, p. 448 -451.
183 On EU policy on competition and state aid incompatible with EU internal market see Cătălin –
Silviu Săraru, State Aids that are Incompatible with the Internal Market in European Court of
Justice Case Law , p. 39 -48 in Cătălin -Silviu Săraru, Studies of Busine ss Law – Recent Develop-
ments and Perspectives , Peter Lang, Frankfurt am Main, 2013; on the application of the princi-
ples of non -discrimination and equal treatment in the award of public procurement contracts in
the EU and the EU Court of Justice to see Mart in Trybus, op. cit. , 2010, p. 98 -102.
184 For a study on the principle of mutual recognition to see Mădălin Irinel Niculeasa, Legislația
achizițiilor publice. Comentarii și explicații , C.H. Beck Publishing House, Bucharest, 2007, p.
55-80. Applying this principle in public procurement means that the Member State where the
service is provided or the goods delivered must accept the technical specifications, certificates
and qualifications obtained in another Member State. Thus, for example, the Member State
where the service is provided must accept the equivalent qualifications already acquired by the
service provider in another Member State, qualification attesting professional capacities, tech-
nical and financial (p. 55, 56).
185 Martin Trybus, op. cit. , 2010, p. 103 -109.

European Administrative Space 73

treatment of public and private operators186, under which EU rules apply to
public and private enterprises the same conditions . EU law therefore acts as a
unifying factor of public and private law. We find that the model public -private
partition French legal system is not in EU law187. Interests and ideals that Europe
serves nowadays it seems no longer compatible with the "royalty" of administra-
tive law, the frenchman P. Legendre188 was talking about.
Unlike the French model, EU law has its source in an opposite -sharing
social roles, the promotion of private enterprise and market principles implies a
significant reduction in administr ative functions and public law that underpins
them. French doctrine is estimated that no sector is more difficult to reconcile
with freedom of movement or provision of services in the European Union as the
administrative contracts, because those contracts are, by their nature, discrimina-
tory, one of the contractors is a public authority acting in pursuit of public inter-
est189. The European Community has therefore undertaken a sustained effort to
progressively towards liberalization of public contracts. This l iberalization was
applied successively of public works, supplies, services; concessions; certain cat-
egories of purchases in particular sectors (water, energy, transport, telecommuni-
cations);
– EU law focused on the development of the single market gave ris e to
living disputes at national level where he often put the question of delimitation
of borders between market logic and common mode internal public of any
State , or in other words, border demarcation between EU interests and interests
national190. So-called conflict between the logic of the single market private and
public logic which was in the national sovereignty of each state was mostly solved
judicially. In French jurisprudence for example emphasized that not every con-
cession enters the field of refer ence of the EEC Treaty – „this being an operation
for a national activity on which the hand over, and a public authority, his regime
keep right internal. There will be no interference with Community law than when
concession creates relationships likely to question the rules of the Common Mar-
ket”191, particularly competitive conditions for environmental protection in the

186 Under the influence of this principle we are witnessing today an evolution marked consisting of
the progressive abandonment of markets protected operating in traditionally some public enter-
prises managing public services (mainly in the sectors of air transport and rail, telecommunic a-
tions and energy) in favor of a effective competition between public and private operators –
see in this regard Jean -Philippe Colson, Droit public économique , 3e édition, L.G.D.J., Paris,
2001, p. 333, 334.
187 See also Ioan Alexandru, Mihaela Cărăușan, Sorin Bucur, Drept administrativ , Lumina Lex
Publishing House, Bucharest, 2005, p. 399 -401.
188 P. Legendre, Trésor historique de l’État en France , Fayard, 1992.
189 See L. Cartou, J. -L. Clergerie, A. Gruber, P. Ramb aud, L’Union européenne , Dalloz, 2000, 3e
éd., p. 306.
190 See Iulian Avram, Contractele de concesiune , Rosetti Publishing House, Bucharest, 2003, p.
222, 223.
191 C. Brechon -Moulenes, F. Lorens, M. Bazex; G. Guisolphe, J. -B. Auby, P. Delvolve, La conces-
sion d e service public face au droit communautaire , Sirey, Paris, 1992, p. 59.

74 Cătălin -Silviu Săraru

Union. Likewise ruled the European Court of Justice judgment of 18 June 1991
on the concession of exclusive rights in broadcasting – "Communi ty law does not
preclude the award of a monopoly on television for reasons of public interest,
non-economic. However, the organizational arrangements and to exercise such a
monopoly must not create any damage Treaty provisions on the free movement
of goods and services, as competition rules". We have some reservations about
the idea boundary between EU law and national law based primarily on Kelsen's
view, widely accepted today that the Roman -Germanic law system is subordi-
nated to the principle of hierarchy of laws and there can not be two parallel sys-
tems of law into a country. In jurisprudence and doctrine often meet reflexes of
national sovereignty. Thus, we find that although the EC Treaty and ECJ case law
[causes Costa v. ENEL (1964) and Case Simmenthal II (1977) ] have stressed the
principle of priority of Community law over national regulations in many Mem-
ber States law has placed Community law in a position intermediate between the
Constitution and other internal regulations, thus consecrating the stro ng imprint
of national sovereignty192. In this regard remained benchmark German Federal
Constitutional Court ruling of May 29, 1974 Handelsgesellschaft mbH for Inter-
national against Einfuhr , known as Solange I (repeated and amplified in deci-
sions Solange II – 1983 and Maastricht Decision – 1993). The Court stated in that
judgment that as long as (solange in German) Community did not eliminate the
possible conflict of rules between Community law and national constitutional
rights of the German, Constitutional Court could ensure that the latter have pri-
ority. The doctrine speaks today about Solange spirit in all those decisions falling
European constitutional courts, in accordance with the provisions of national con-
stitutions express or implied, limits imposed p artial or absolute precedence of
Community law to national constitutional provisions. The limits aimed at politi-
cal and legal values of national identity established by constitutional provisions
which are not accepted to be reviewed if their inconsistency with Community
law. The Member States meet in two typologies of great spirit Solange . In a first
typology is found the group of countries (Italy, Germany, Denmark, Belgium,
Spain, Sweden, Ireland, UK) who have limited partly precedence of Community
law to the Constitution own, assuming the right to check the courts their consti-
tutional constitutionality of Community law only in connection with certain fun-
damental constitutional values related to cultural identity and political -juridical
respective nations. The second typology enter states (France, Greece) have not
agreed, in principle, any precedence of EU law over national constitution. But
beyond these legal types, reality showed that it would be very difficult to use in
a particular state standards and pr actices for implementing various EU and na-
tional legislation193. Increasingly, national institutions have applied the same

192 See Manuel Guțan, Forme pe un alt fond: transplantul juridic comunitar și cultura juridică
românească , „Pandectele Române” no. 5/2008 , p. 28, 29.
193 Jürgen Schwarze, European Administrative Law, Office for official publications of the European
communities , Sweet and Maxwell, 1992.

European Administrative Space 75

standards and the same practices used for both. This leads to the idea of a right of
public administration jointly developed EU member states. This kind of "contam-
ination" of national legislation to EU law principles contribute to establishing a
European Administrative Space.

2.3. The fundamental principles drawn from the Court of Justice of
the European Union in the field of public proc urement and concessions

2.3.1. Preliminary considerations

The law of the European Union has had, since the creation of the three
Communities, an economic logic, aiming to create a single market and promote
free competition between markets and services194. Creating an internal market has
involved and creating a competitive and non -discriminatory market in the field
of public contracts.
Currently, the EU legislative framework in the field of public contracts
has three directions195:
– regulation by general rul es of procedures for the award of public con-
tracts (public procurement contracts and, partly, concessions). Law draws a dis-
tinction between public contracts for the supply of goods, the provision of ser-
vices and execution of works196.
– regulation of a sepa rate area with exceptional character, depart from
general rules presented at the first point, that the procurement procedures of en-
tities operating in the water, energy, transport and postal services sectors .
– regulating procedures for the review when it violated EU law on the
award of public contracts.
Court of Justice of the European Union has an important role in the in-
terpretation and uniform application in all 27 Member States of legislation on
public contracts.
The Court of Justice of the European Union shall include the Court of
Justice, the General Court and specialised courts under art. 19 (1) of the Treaty

194 Vlachos, G., Droit public économique français et européen, 2e édition, Paris : Édition Dalloz,
2001, p. 222; Alexandru, I., Tratat de administrație publică/Treaty of public administration,
Bucharest, Universul Juridic, 2008, p. 865-873.
195 Cartou, L.; Clergerie, J. -L. ; Gruber, A. ; Rambaud, P., L’Union européenne, 3e édition. Paris :
Dalloz , 2000, p. 307
196 Mathijsen, P., Compendiu de drept european/Compendium of European Law , 7th edition. Bu-
charest: Club Europa, 2002, p. 448.

76 Cătălin -Silviu Săraru

on European Union (TEU) 197. Court aims to ensure compliance with EU law in
the interpretation and uniform application of Treaties which govern ed the crea-
tion of the European Communities and then the European Union. At the request
of the Union institutions, a State or private persons directly concerned, the Court
may cancel the provisions of the Commission, Council of EU or national govern-
ments w hich would be incompatible with the founding Treaties (now the Treaty
on European Union and the Treaty on the Functioning of the European Union198).
With an experience of almost 60 years, the EU Court of Justice has es-
tablished by case -law, the guidelines (p rinciples) which the Member States
should take into account in the application of European Union law199.
In the field of public procurement contracts and concessions, the EU
Court of Justice concluded a few principles which contribute to the uniform in-
terpretation and application of the provisions of EU directives governing public
contracts. These principles derive an essential role, as the sole criterion for re-
porting, in public contracts are not subject to rules of Directives 2014/23/UE,
2014/24/UE and 20 14/25/UE (with a value lower than the threshold specified in
Directives or is expressly excluded as happens) or are only partially subject to
their. Court of Justice of the European Union stated that these contracts, which
are totally or partially excluded from the scope of EU Directives in the field of
public contracts, are required, however, to respect the fundamental principles of
constituent Treaties relating to: the free movement of goods (Article 34 of the
Treaty on the Functioning of the European Uni on – ex Article 28 of the Treaty
establishing the European Community – TEC), the right of establishment (Article
49 of the Treaty on the Functioning of the European Union – ex Article 43 TEC),
the freedom to provide services (Article 56 of the Treaty on the Functioning of
the European Union – ex Article 49 TEC), prohibition of discrimination on
grounds of nationality (Article 18 of the Treaty on the Functioning of the Euro-
pean Union – ex Article 12 TCE), transparency, proportionality and mutual
recognit ion (Case C -59/00, Bent Mousten Vestergaard , point 20; Case T -258/06,
Germany/Commission , point 113 ff.)200. Court clearly stated in many decisions,
willingness to appreciate all public contracts in relation to fundamental freedoms
recognized and guaranteed by the EC Treaty (now the Treaty on the Functioning

197 See Art. 19 (1) of the consolidated version of the Treaty on European Union, published in the
OJEU no. C 83/30.3.2010, http://europa.eu/documentation/legislation/index_en.htm (last
consulted on the 15th of July 2017).
198 See consolidated version of the Treaty on the Functioning of the European Union , published in
the OJEU no. C 83/30.3.2010, http://europa.eu/documentat ion/legislation/index_en.htm (last
consulted on the 15th of July 2017).
199 Ioan Alexandru, op. cit. , 2008, p. 879.
200 Brown, A., Case T -258/06: the German Challenge to the Commission's Interpretative Commu-
nication on Contracts not subject to the Procurement Directives, Public Procurement Law Re-
view, 2007, p. 84 -87.

European Administrative Space 77

of the European Union), subjecting their minimum obligations prior to advertis-
ing, organizing effective competition and fairness of procedures201.
In other cases -law Court has decided that the standards der ived from the
EC Treaty (now the Treaty on the Functioning of the European Union) apply only
to contract awards having a sufficient connection with the functioning of the EU
Internal Market (Case C -458/03, Parching Brixen , point 49; Case C -231/03,
Coname , points 16 -19)202. In this regard, the Court considered that in individual
cases, “because of special circumstances, such as a very modest economic inter-
est at stake” , a contract award would be of no interest to economic operators
located in other Member Stat es. In such a case, “the effects on the fundamental
freedoms are … to be regarded as too uncertain and indirect” to warrant the
application of standards derived from primary Union law.
The Commission Interpretative Communication of 2006 indicates that it
is the responsibility of the individual contracting entities to decide whether an
intended contract award might potentially be of interest to economic operators
located in other Member States. In the view of the Commission, this decision has
to be based on an evaluation of the individual circumstances of the case , such as
the subject -matter of the contract, its estimated value, the specifics of the sector
concerned (size and structure of the market, commercial practices etc.) and the
geographic location of t he place of performance. If the contracting entity comes
to the conclusion that the contract in question is relevant to the Internal Market,
it has to award it in conformity with the basic standards derived from Union law.
When the Commission becomes aware of a potential violation of the
basic standards for the award of public contracts not covered by the Public Pro-
curement Directives, it will assess the Internal Market relevance of the contract
in question in the light of the individual circumstances of ea ch case. Infringement
proceedings under Article 258 of the Treaty on the Functioning of the European
Union (ex Article 226 TEC) will be opened only in cases where this appears ap-
propriate in view of the gravity of the infringement and its impact on the Int ernal
Market.

201 Grove -Valdeyron, N., Marchés publics in Annuaire de droit européen, volume III -2005 . Brux-
elles : Bruylant, 2008, p. 404
202 Kotschy, B., Arrêts "Stadt Halle", "Coname" et "Parking Brixen", Revue du droit de l'Union
européenne no. 4/2005 , p. 845 -853; Idot, L., Transparence et contrats de concession, Europe
no. 338/2005 , p.23-24; Brown, A., The Application of the EC Treaty to a Services Concession
Awarded by a Public Authority to a Wholly Owned Subs idiary: Case C -458/03, Parking Brixen,
in Public Procurement Law Review , 2006, p. 40 -47; Nicolella, M., Une autorité publique ne
peut pas attribuer sans mise en concurrence une concession de service public à une société dont
elle détient intégralement le c apital mais qui opère de façon indépendante, Gazette du Palais.
No. 102 -103/2006, p.30.

78 Cătălin -Silviu Săraru

2.3.2. Fundamental principles applicable in the award of public pro-
curement contracts and concessions drawn from the Court of Justice of the
European Union

A. Transparency in the process of awarding public procurement con-
tracts and concessi ons

The Court of Justice of the European Union stated that the obligation of
transparency consists in ensuring, for the benefit of any potential tenderer, a de-
gree of advertising sufficient to enable the services market to be opened up to
competition and the impartiality of the procedures to be reviewed ( Case C –
324/98, Telaustria , point 62; Case C -458/03, Parking Brixen , point 49; Case T –
258/06, Germany/Commission , point 109)203. A transparent and objective ap-
proach to procurement procedures requires that al l participants must be able to
know the applicable rules in advance (the award criteria to be satisfied by the
tenders and the relative importance of those criteria) and must have the certainty
that these rules apply to everybody in the same way (Case T -258/06, Ger-
many/Commission , point 109; Case C -87/94, Commission/Belgium , points 88 and
89; Case C -470/99, Universale -Bau and others , point 99). The role of this prin-
ciple is to afford all tenderers equality of opportunity in formulating the terms of
their ap plications to participate or of their tenders (Case T -258/06, Ger-
many/Commission , point 124)204.
In the absence of publicity and openness to competition in the awarding
of concession contracts and public procurement contracts, there is “a potentially
discrim inatory to the detriment of undertakings from other Member States that
are prevented to enjoy freedom to provide services and freedom of establishment
covered by the EC Treaty” – potential damage criterion (Case C -231/03,
Coname , point 17)205.
The obligation of transparency requires that an undertaking located in
another Member State has access to appropriate information regarding the con-
tract before it is awarded, so that, if it so wishes, it would be in a position to

203 Dischendorfer, M., Service Concessions under the E.C. Procurement Directives: A Note on the
Telaustria Case, Public Procurement Law Review , 2001 , p. 57 -63.
204 Brown, A ., Case T -258/06: the German Challenge to the Commission's Interpretative Commu-
nication on Contracts not subject to the Procurement Directives, Public Procurement Law Re-
view, 2007, p. 84 -87.
205 Noguellou, R., Revue des Affaires Européennes/Law and European affairs (RAE -LEA) no.
3/2005 , p. 511; Brown, A., Transparency Obligations Under the EC Treaty in Relation to Public
Contracts that Fall Outside the Procurement Directives: A Note on C -231/03, Consorzio
Aziende Metano (Coname) v Comune di Cingia de' Botti, in Public Procurement Law Review,
2005, p. 153 -159; Kotschy, B., Arrêts "Stadt Halle", "Coname" et "Parking Brixen", Revue du
droit de l'Union européenne no. 4/2005, p. 845 -853.

European Administrative Space 79

express its interest in obtaining that c ontract (Case C -231/03, Coname , point
21)206.
The principles which flow from the EC Treaty cannot impose a require-
ment of prior publicity where the directives expressly provide for a derogation,
or that derogation would be nugatory (Opinion of Advocate Gener al Stix Hackl
in Case C -231/03, Coname , point 93).
Contracting entities may take measures to limit the number of applicants
to an appropriate level, provided this is done in a transparent and non -discrimi-
natory manner . They can, for instance, apply object ive factors such as the expe-
rience of the applicants in the sector concerned, the size and infrastructure of their
business, their technical and professional abilities or other factors. In any event,
the number of applicants shortlisted shall take account of the need to ensure ade-
quate competition. Alternatively, contracting entities might consider qualification
systems where a list of qualified operators is compiled by means of a sufficiently
advertised, transparent and open procedure (section 2.2.2. the C ommission Inter-
pretative Communication of 2006207; Case T -258/06, Germany/Commission ,
point 126).
Worth noting that the Court of Justice of the European Union played an
important role in shaping the content of the principle of transparency in public
procure ment, with important consequences for the overall public economic man-
agement208. Thus, in Case C -573/07 Sea relating to the award of a service of
collecting, transporting and disposing of urban waste, the Court noted that it is
not contrary to Articles 43 E C and 49 EC ( now art. 49 and 56 of the Treaty on
the Functioning of the European Union ), the principles of equal treatment and of
non-discrimination on grounds of nationality or the obligation of transparency
arising therefrom for a public service contract to be awarded directly to a com-
pany limited by shares with wholly public capital so long as the public authority
which is the contracting authority exercises over that company control similar to
that which it exercises over its own departments and so long as the company car-
ries out the essential part of its activities with the authority or authorities control-
ling it. Consequently, without prejudice to the determination by the national court
of the effectiveness of the relevant provisions of the statutes, t he control exercised

206 Grove -Valdeyron, N., Marchés publics in Annuaire de droit européen, volume I II -2005.
Bruxelles: Bruylant, 2008, p. 406 -408; Brown, A., Transparency Obligations Under the EC
Treaty in Relation to Public Contracts that Fall Outside the Procurement Directives: A Note on
C-231/03, Consorzio Aziende Metano (Coname) v Comune di Cingia de' Botti, in Public
Procurement Law Review, 2005, p. 153 -159; Idot, L., Transparence et contrats de concession,
Europe no. 338/2005, p.23 -24.
207 Commission interpretative communication on the Community law applicable to contract awards
not or not fully sub ject to the provisions of the Public Procurement Directives (24.07.2006),
published in the OJEU No. C 179/1.08.2006,
208 Monjal, P. -Y., Des prècisions importantes sur le droit communautaire applicable aux
collectivitès territoriales, LPA no. 149/2006, Paris, p. 6; Brown, A., op. cit. (2005), p. 153 -159;
Idot, op. cit. (2005), p.23-24.

80 Cătălin -Silviu Săraru

over that company by the shareholder authorities may be regarded as similar to
that which they exercise over their own departments, when, first, that company’s
activity is limited to the territory of those authorities and is carried on essentially
for their benefit and, second, through the bodies established under the company’s
statutes made up of representatives of those authorities, the latter exercise con-
clusive influence on both the strategic objectives of the company and on its sig-
nificant decisions. The Court also noted that, although it is not inconceivable that
shares in a company may be sold to private investors, to allow that mere possi-
bility to keep in indefinite suspense the determination whether or not the capital
of a compa ny awarded a public procurement contract is public would not be con-
sistent with the principle of legal certainty. Opening of the capital to private in-
vestors may not be taken into consideration unless there exists, at the time of the
award of the public co ntract, a real prospect in the short term of such an opening.

B. Principle of impartiality of adjudication procedures

The Court of Justice has determined that contracting authorities are
obliged to respect the rules and principles enshrined in the EC Tr eaty (now the
Treaty on the Functioning of the European Union) which guarantee the impartial-
ity of procurement procedures and fair competition for all economic operators
interested in awarding (Case C -470/99, Universale -Bau AG , point 93). The guar-
antee of a fair and impartial procedure is the necessary corollary of the obligation
to ensure a transparent advertising (Case T -258/06, Germany/Commission )209.
This can be best achieved in practice through:

C. Non-discriminatory description of the subject -matter of the con-
tract

This objective follows from the principle of equal treatment, of which the
fundamental freedoms embody specific instances (free movement of goods, per-
sons, services and capital). That is why, in its case -law, the Court of Justice held
that the lawfulness of a clause in the contract documents for a contract whose
value was below the threshold set in Directive 93/37 concerning the coordination
of procedures for the award of public works contracts (now replaced by Directive
2004/18/EC), and whi ch therefore fell outside the scope of that directive, had to
be assessed by reference to the fundamental rules of the EC Treaty, which include
the principle of the free movement of goods, provided in Article 28 EC (Case C –
59/00, Vestergaard , point 21)210.

209 Brown, A., op. cit. (2007), p. 84 -87.
210 Klages, R., Marchés publics. Arrêt "Vestergaard", Revue du droit de l'Union européenne no.
1/2002, p. 157 -159.

European Administrative Space 81

The Member States must describe the subject -matter of the contract in
such a way that it may be understood in the same way by all potential tenderers,
while guaranteeing equal access to economic operators in other Member States
(Case T -258/06, Germany/Comm ission )211. The description of the characteristics
required of a product or service should not refer to a specific make or source, or
a particular process, or to trade marks, patents, types or a specific origin or pro-
duction unless such a reference is justif ied by the subject -matter of the contract
and accompanied by the words “or equivalent” (Case C -59/00, Vestergaard , point
21-24; Case T -258/06, Germany/Commission; the Commission Interpretative
Communication of 2006, p. 9; the Commission Interpretative Comm unication of
2003212, p. 2). According to the case -law on public supply contracts, failure to
add the words “or equivalent” after the designation in the contract documents of
a particular product may not only deter economic operators using systems similar
to that product from taking part in the tendering procedure, but may also impede
the flow of imports in intra -Community trade, contrary to Article 28 EC (now art.
34 of the Treaty on the Functioning of the European Union ), by reserving the
contract exclusive ly to tenderers intending to use the product specifically indi-
cated (Case C -45/87 Commission/Ireland , point 22; Case C -359/93 Commis-
sion/Netherlands , point 27; Case C -59/00, Vestergaard , point 24; Case T -258/06,
Germany/Commission , point 114)213. It is there fore recommended to use more
general descriptions regarding contract performance or functions. Technical
specifications for such contracts have to be established prior to selection of a con-
tractor and must be made known or available to potential bidders by means that
ensure transparency and place all potential bidders on equal footing (Opinion of
Advocate General Jacobs in Case C -174/03, Impresa Portuale di Cagliari , points
76-78).

D. Equal treatment of operators involved in awarding

In the internal marke t conditions, this principle requires first ensuring
equal access for economic operators from all Member States. The Court consid-
ered that this objective (aim), which is designed to ensure that traders, of what-
ever origin, have equal access to contracts pu t out to tender, derives from com-
pliance with the principles of freedom of establishment, freedom to provide ser-
vices and free competition (the Opinion of Advocate General Léger in Case
C-44/96 Mannesmann Anlagenbau Austria and Others , point 47; Opinion of Ad-
vocate General Mischo in Case C -237/99 Commission/France , point 49) and, in

211 Brown, A., op. cit. (2007), p. 84 -87.
212 Commission interpretative communication on facilitating the access of products to the markets
of other Member States, Official Journal No. C 265/04.11.2003.
213 Fernández, José M., Note on Case C -359/93 Commission v. The Netherlands (the "UNIX" case),
Public Procurement Law Review, 1995, p. 74 -79; Terneyre, P., Marchés publics. Paris: Recueil
Dalloz Sire y, 1989, p. 217 -218.

82 Cătălin -Silviu Săraru

particular, with the principle of equal treatment as expressed in the prohibition of
discrimination on grounds of nationality laid down in Article 12 EC (now art. 18
of the Treaty on the Functioning of the European Union ).
According to the case -law of the Court of Justice, the principle of equal
treatment, of which Articles 43 EC and 49 EC of the Treaty (now art. 49 and 56
of the Treaty on the Functioning of the European Union ) reflect specific in-
stances, prohibits not only overt discrimination on grounds of nationality but also
all covert forms of discrimination which, through the application of other criteria
of differentiation, bring about the same outcome in practice, so that public con-
tracts in the various Member States are open to all undertakings in the Union
(Case C -22/80, Boussac Saint -Frères , point 7; Case C -3/88, Commission/Italy ,
point 8; Case C -243/89, Commission/Denmark , point 23 and 33; Case C -87/94,
Commission/Bel gium , point 51).
The case -law of the Court of Justice of the European Union stresses that
to achieve equal access for economic operators from all Member States, contract-
ing entities should not impose conditions causing direct or indirect discrimination
against potential tenderers in other Member States, such as the requirement that
undertakings interested in the contract must be established in the same Member
State or region as the contracting entity (Case C -324/98, Telaustria ; Case T –
258/06, Germany/Comm ission , point 109)214.
According to the case -law of the Court of Justice, the general conditions
of the contract documents must comply with all the relevant provisions of Union
law and, in particular, with the prohibitions flowing from the principles laid do wn
in the EC Treaty (now the Treaty on the Functioning of the European Union ) in
relation to the right of establishment and the freedom to provide services, and to
the principle of non -discrimination on grounds of nationality (Case C -27/86,
CEI/Association intercommunale pour les autoroutes des Ardennes , point. 15;
Case C -29/86, Bellini , paragraph 15; Case C -31/87, Beentjes , paragraphs 29 and
30).
The procedure for comparing tenders therefore had to comply at every
stage with both the principle of the equal treatment of tenderers and the principle
of transparency so as to afford equality of opportunity to all tenderers when for-
mulating their tenders (Case C -87/94, Commission/Kingdom of Belgium , point
54)215.

214Commission interpretative communication on the Community law applicable to contract awards
not or not fully subject to the provisions of the Public Procurement Directives (24.07.2006),
published in the OJEU No. C 179/1.08.2006 , p. 9; Dischendorfer, M., Service Concessions
under the E.C. Procurement Directives: A Note on the Telaustria Case, Public Procurement
Law Review , 2001, p. 57 -63.
215 Charbit, N., Le recours de la Commission devant la C.J.C.E. dans les procédures de passation
de ma rchés publics, Les petites affiches no. 87/1995, p.22 -27.

European Administrative Space 83

It is important that the final decision awarding the contract complies with
the procedural rules laid down at the outset and that the principles of non -dis-
crimination and equal treatment are fully respected. This is particularly relevant
to procedures providing for negotiation with shortlisted tenderers. Su ch negotia-
tions should be organised in a way that gives all tenderers access to the same
amount of information and excludes any unjustified advantages for a specific ten-
derer (section 2.2.3. the Commission Interpretative Communication of 2006216;
Case T -258/06, Germany/Commission , points 129 and 130).
The Existence of regulations in the Member State reserving the public
procurement contract only to companies of which the State or the public sector,
whether directly or indirectly, is a major, or the sole, shar eholder, is a violation
of the principle of equal treatment (Case C -3/88, Commission/Italie , point 30).
The Court also determined that it violated the principle of equal treatment
when participants in the procedure for awarding public procurement contract no
benefit from an objective analysis of the tenders and when during the course of
the procedure is changing conditions and allows a participant to gain advantage
over other competitors (Case C -243/89, Storebaelt , point 37).

E. Mutual recognition of diplo mas, certificates and other evidence of
formal qualifications

The principle of mutual recognition makes it possible for the free move-
ment of goods and services to be ensured without there being any need to harmo-
nise the national legislation of the Member States (Case 120/78 Rewe -Zentral )217.
If applicants or tenderers are required to submit certificates, diplomas or
other forms of written evidence, documents from other Member States offering
an equivalent level of guarantee have to be accepted in accordance with the prin-
ciple of mutual recognition of diplomas, certificates and other evidence of formal
qualifications (Case C -451/08, Helmut Müller ). In that regard, the authorities of
a Member State are required to take into consideration all of the diplomas, c ertif-
icates and other evidence of formal qualifications of the person concerned, as well
as the relevant experience of that person, by comparing the specialised knowledge
and abilities thus attested and that experience with the knowledge and qualifica-
tions required under the national legislation (Case C -340/89 Vlassopoulou , para-
graphs 16, 19 and 20; Case C -319/92 Haim , paragraphs 27 and 28; Case C -238/98
Hocsman , paragraph 23; Case C -31/00 Dreessen , paragraph 24)218. The Court has

216 Commission interpretative communication on the Community law applicable to contract awards
not or not fully subject to the provisions of the Public Procurement Directives (24.07.2006),
published i n the OJEU No. C 179/1.08.2006.
217 Mattera, A., L'arrêt "Cassis de Dijon": une nouvelle approche pour la réalisation et le bon
fonctionnement du marché intérieur , Revue du Marché Commun, p.505 -514, 1980 , p. 505 -514.
218 Huglo, J. -G., La reconnaissance mutuell e des diplômes et des titres universitaires dans la
jurisprudence communautaire, Gazette du Palais, 1995, p.668 -672.

84 Cătălin -Silviu Săraru

held that mutual recognition must enable the national authorities to assure them-
selves, on an objective basis, that the foreign diploma certifies that the holder has
knowledge and qualifications which, if not identical, are at least equivalent to
those attested by the national diplom a (Case C -222/86 Heylens and Others , par-
agraph 13).
The role of European Union legislation, based on economic desideratum,
is to overcome national borders, giving the freedom of movement for economic
operators and secondly, to prohibit discrimination betwe en public and private op-
erators. The principle of mutual recognition has been laid down by the Court
and gradually defined in greater detail in a large number of judgments on the free
circulation of goods, persons and services. According to this principle, a Member
State must accept the products and services supplied by economic operators in
other Union countries if the products and services meet in like manner the legiti-
mate objectives of the recipient Member State219.
The application of this principle to p ublic procurement and concessions
implies, in particular, that the Member State in which the service is provided or
the good is delivered must accept the technical specifications, diplomas, certifi-
cates, qualifications or other written evidence, documents from other Member
States and providing an equivalent level of guarantee220 (Case T -258/06, Ger-
many/Commission ). For example, the Member States in which the service is pro-
vided must accept the equivalent qualifications already acquired by the service
provider in another Member State which attest to his professional, technical and
financial capacities.
In Romania in this field apply the Law 200/2004 on recognition of diplo-
mas and professional qualifications for regulated professions in Romania221.

F. Principle o f equal treatment of public and private operators

Under this principle, EU rules apply to the same conditions for public
and private enterprises222 (Case T -244/94, Wirtschaftsvereinigung Stahl and Oth-
ers/ Commission; Case T-156/04, EDF/ Commission ). Under the influence of this
principle, we are witnessing today a remarkable evolution involving the progres-
sive abandonment of protected markets, where traditionally operated only public

219 Huglo, J.-G., op. cit. ( 1995) , p.668 -672; Niculeasa, M. I., Legislația achizițiilor publice.
Comentarii și explicații/Public procurement legislation. Comments and explanations.
Bucharest: C.H. Beck, 2007, p. 55 -80.
220 Săraru, C. S., Contractele publice/Public contracts in Alexandru, I., Gorjan, I., Ivanoff, I. V.,
Manda, C. C., Nicu, A. L., & Săraru, C. S. Drept administrativ European/European
Administrative Law. Bucharest: Lumina Lex, 2005, p. 136.
221 Published in Official Gazette no. 500 of June 3, 2004, as amended.
222 Săraru, C. S., op. cit. (2005), p. 137.

European Administrative Space 85

enterprises ( mainly in air and rail transport sectors, telecommunications a nd en-
ergy) , for a genuine competition between public and private operators 223. Thus
found that the model public -private division of the French legal system does not
fall under EU law 224. Interests and ideals which it serves Europe today seems no
longer compa tible with that the “royalty” of administrative law of which he spoke
the French P. Legendre225.
Unlike the French model, EU law has its source in a manner opposite to
share social roles, the promotion of private enterprise and market principles im-
plies a s ignificant reduction in administrative functions and public law behind
them. In the French doctrine is assessed that no area is more difficult to reconcile
with freedom of movement or the provision of services in the European Union
than the administrative contracts, because these contracts are, by nature, discrim-
inatory, one of the contractors being a public authority acting to achieve the pub-
lic interest226. Therefore, the EU had undertaken an effort gradually to liberalize
public contracts. This liberalizat ion has been successively applied: public works
contracts, public supply contracts, public service contracts, concessions, certain
categories of acquisitions in particular sectors (water, energy, transport, and
postal services sectors).
The case -law of the Court of Justice of the European Union showed that
application of EU law on public contracts (public procurement and concessions)
does not depend on public, private or mixed structure of the co -contractor (Case
C-107/98, Teckal , point. 50). However, in Ca se C-480/06, Commission/Germany,
concerning a contract relating to the disposal of waste in a new incineration fa-
cility concluded between four Landkreise (administrative districts) and the City
of Hamburg Cleansing Department without a tendering procedure, the Court held
that a contract which forms both the basis and the legal framework for the future
construction and operation of a facility intended to perform a public service,
namely thermal incineration of waste, in so far as it has been concluded solely by
public authorities, without the participation of any private party, and does not
provide for or prejudice the award of any contracts that may be necessary in re-
spect of the construction and operation of the waste treatment facility, does not

223 Colson, J. -Ph., Droit public économique, 3e édition, Paris: Librairie Générale de Droit et de
Jurisprudence (L.G.D.J.) , 2001, p. 333, 334.
224 Alexandru, I., Cărăușan, M., Bucur, S., Drept administrativ/Administrative Law, Bucharest:
Lumina Lex. , 2005, p. 399 -401; Alexandru, I., Dreptul și managementul. Dihotomie sau
complementaritate. Impactul informatizării/ Law and management. Dichotomy or
complementarity. Impact of computerization, Bucharest: All Beck, 2004, p. 52 -54.
225 Legendre, P. , Trésor historique de l’État en France. Paris : Fayard, 1992.
226 Cartou, L.; Clergerie, J. -L. ; Gruber, A. ; Rambaud, P., L’Union européenne, 3e édition. Paris :
Dalloz, 2000, p. 306.

86 Cătălin -Silviu Săraru

fall withi n the scope of Directive 92/50/EEC227. A public authority has the possi-
bility of performing the public interest tasks conferred on it either by using its
own resources or in cooperation with other public authorities, without being
obliged to call on outside entities not forming part of its own departments. In that
connection, first, Union law does not require public authorities to use any partic-
ular legal form in order to carry out jointly their public service tasks. Under Union
law, public authorities are fr ee to pursue economic activities themselves or to
assign them to third parties, such as mixed capital entities founded in the context
of a Institutionalised Public -Private Partnerships – IPPP (the Commission Inter-
pretative Communication of 18.02.2008228). Secondly, such cooperation between
public authorities does not undermine the principal objective of the Union rules
on public procurement, that is, the free movement of services and the opening -up
of undistorted competition in all the Member States, where im plementation of
that cooperation is governed solely by considerations and requirements relating
to the pursuit of objectives in the public interest and the principle of equal treat-
ment of the persons concerned, referred to in Directive 92/50, is respected, so that
no private undertaking is placed in a position of advantage vis -à-vis competitors.

G. Appropriate time -limits in which the undertakings concerned of
any Member State are able to prepare their offers

Time -limits for expression of interest and for submission of offers should
be long enough to allow undertakings from other Member States to make a mean-
ingful assessment and prepare their offer (Case T -258/06, Commission/Ger-
many) .
The requirement of reasonable time result from the fact that contracting
authorities must comply with the principle of the freedom to provide services and
the principle of non -discrimination, which seek to protect the interests of traders
established in a Member State who wish to tender goods or services to contracting
authori ties established in another Member State (Case C -380/98, University of
Cambridge , paragraph 16; Case C -237/99, Commission/France , paragraph 41;
Case C -92/00, HI, paragraph 43; Case C -470/99, Universale -Bau and Others ,
paragraph 51). Their aim is to avoid t he danger of preference being given to na-
tional tenderers or applicants whenever a contract is awarded by the contracting
authorities (Case C -470/99, Universale -Bau and Others , paragraph 52).

227 Council Directive 92/50/EEC of 18 June 1992 relating to the coordinati on of procedures for the
award of public service contracts (OJ L 209/ 24.7.1992 ). The provisions of this Directive are
currently found in Directive 2004/18/EC.
228 Commission interpretative communication on the application of Community law on Public Pro-
curem ent and Concessions to Institutionalised Public -Private Partnerships (IPPP) ,
(05.02.2008), C(2007)6661, http://ec.europa.eu/internal_market/publicprocurement/key -docs_
en.htm

European Administrative Space 87

2.3.3. Principles for the execution of public procurement contra cts
and concession contracts drawn from the Court of Justice of the European
Union

Directives 2004/18/EC and 2004/17/EC relate, mostly, the procedure for
awarding public contracts (public procurement contracts and partly of concession
contracts), not clos ing procedures, modification and termination of these con-
tracts229. Also, as noted above, the procedure for awarding public procurement
contracts and concessions that fall outside the regulatory scope of both directives,
but have a sufficiently close link wi th the EU internal market, is subject to rules
and principles of the Treaty EC (now the Treaty on the Functioning of the Euro-
pean Union). Question is what rules will apply on conclusion procedures, amend-
ment and termination of public procurement contracts and concessions.
Regarding the enforcement of contract conditions, directives states that
contracting authorities may lay down special conditions relating to the perfor-
mance of a contract, provided that these are compatible with Union law and are
indicated in the contract notice or in the specifications. The conditions governing
the performance of a contract may, in particular, concern social and environmen-
tal considerations (art. 26 of Directive 2004/18/EC and art. 38 of Directive
2004/17/EC).
In the Green Paper on Public -Private Partnerships and Community Law
on Public Contracts and Concessions adopted in 2004, the Commission states that
the contractual provisions governing the phase of implementation are primarily
those of national law. However, contractu al clauses must also comply with the
relevant Union rules, and in particular the principles of equality of treatment and
transparency. This implies in particular that the descriptive documents must for-
mulate clearly the conditions and terms for performance of the contract. The case –
law of the Court of Justice showed that, in addition, these terms and conditions
of performance must not have any direct or indirect discriminatory impact or
serve as an unjustifiable barrier to the freedom to provide services or freedom of
establishment (Case C -19/00, SIAC Constructions , points 41 -45; Case C -31/87,
Beentjes/Pays -Bas, points 29 -37).
The success of a contract depends to a large extent on the appropriate
assessment and optimum distribution of the risks between the p ublic and the pri-
vate sectors , and determining mechanisms to evaluate the performance in execut-
ing the contract on a regular basis. In this context, the principle of transparency
requires that the elements employed to assess and distribute the risks, and t o eval-
uate the performance, be communicated in the descriptive documents, so that ten-
derers can take them into account when preparing their tenders.

229 Săraru, C. S., Contractele administrative. Reglementare. Doctrină. Jurisprudență/Administrative
contracts. Legislation. Doctrine. Case -Law. Bucharest: C.H. Beck, 2009, p. 454 -458.

88 Cătălin -Silviu Săraru

The period during which the private partner will undertake the perfor-
mance of a work or a service must be f ixed in terms of the need to guarantee the
economic and financial stability of a project. The duration of the contract must
be set so that it does not limit open competition beyond what is required to ensure
that the investment is paid off and there is a r easonable return on invested capital.
An excessive duration is likely to be censured on the basis of the principles gov-
erning the internal market or the provisions of the Treaty on the Functioning of
the European Union governing competition (article 101 – ex Article 81 TEC; ar-
ticle 102 – ex Article 82 TEC and Article 106 – ex Article 86 TEC). The principle
of transparency requires that the elements employed to establish the duration be
communicated in the descriptive documents so that tenderers can take the m into
account when preparing their tenders.
Contractual relationships must be able to evolve in line with changes in
the macro -economic or technological environment, and in line with general in-
terest requirements. The Green Paper adopted in 2004 show that , in general, Un-
ion public contract law does not reject such a possibility, as long as this is done
in compliance with the principles of equality of treatment and transparency. The
descriptive documents transmitted to the tenderers or candidates during the selec-
tion procedure may provide for automatic adjustment clauses, such as price -in-
dexing clauses, or stipulate the circumstances under which the rates charged may
be revised. They can also stipulate review clauses on condition that these identify
precisel y the circumstances and conditions under which adjustments could be
made to the contractual relationship. However, such clauses must always be suf-
ficiently clear to allow the economic operators to interpret them in the same man-
ner during the tenderers -selection phase.
In general, changes made in the course of the execution of a contract, if
not covered in the contract documents, usually have the effect of calling into
question the principle of equality of treatment of economic operators. Such un-
regulated mo difications are therefore acceptable only if they are made necessary
by an unforeseen circumstance, or if they are justified on grounds of public pol-
icy, public security or public health (art. 52 of the Treaty on the Functioning of
the European Union – ex Article 46 TEC). In addition, any substantial modifica-
tion relating to the actual subject -matter of the contract must be considered equiv-
alent to the conclusion of a new contract, requiring a new competition (Case C –
337/98, Commission/France , points 44 ff. ).

2.3.4. Fundamental principles drawn from the Court of Justice of the
European Union applied in the review procedures to the award of public
procurement and concession contracts

Opening public procurement to competition in the European Union re-
quires t he existence of guarantees of transparency and nondiscrimination. For

European Administrative Space 89

these guarantees to be effective, tenderers must have the possibility to use review
procedure or repair, if a breach of EU law.
The review procedures are covered by Council Directive 89/ 665/EEC of
21 December 1989 on the coordination of the laws, regulations and administrative
provisions relating to the application of review procedures to the award of public
supply and public works contracts and Council Directive 92/13/EEC of 25 Feb-
ruary 1992 coordinating the laws, regulations and administrative provisions re-
lating to the application of Union rules on the procurement procedures of entities
operating in the water, energy, transport and telecommunications sectors. Di-
rective 2007/66/EC amends Directives 89/665/EEC and 92/13/EEC with regard
to improving the effectiveness of review procedures concerning the award of pub-
lic contracts230.
Council Directive no. 89/665/EEC (as amended by Directive
2007/66/EC) states in Art. 1(3) that “Member States shall ensure that the review
procedures are available, under detailed rules which the Member States may es-
tablish, at least to any person having or having had an interest in obtaining a par-
ticular contract and who has been or risks being harmed by an alleg ed infringe-
ment”. Court noted in Case C -129/04, Espace Trianon that the wording “any per-
son having or having had an interest in obtaining a particular contract” is to be
interpreted as not precluding national law from providing that only the members
of a c onsortium without legal personality which has participated, as such, in a
procedure for the award of a public contract and has not been awarded that con-
tract, acting together, may bring an action against the decision awarding the con-
tract and not just one of its members individually.
In accordance with the case -law on judicial protection, the available rem-
edies must not be less efficient than those applying to similar claims based on
domestic law – principle of equivalence – and must not be such as in pract ice to
make it impossible or excessively difficult to obtain judicial protection – princi-
ple of effectiveness231 (Case C -46/93, Brasserie du Pêcheur , point 83; Case C –
48/93, Factortame , point 83; Case C -327/00, Santex , point 55).
Member States should take n ecessary measures to ensure that decisions
taken by bodies responsible for review procedures can be implemented effec-
tively – the principle of effectiveness of legal means of action232 (Case C -50/00,

230 Published in the OJEU No. L335/20.12.2007.
231 Belorgey, J. -M., Gervasoni, S., Lambert, Ch., Effectivité des recours. L'actualité juridique ; droit
administratif , 2003, p. 2153 -2154; Dubouis, L., La responsabilité de l'Etat législateur pour les
dommages causés aux particuliers par la violation du droit communautaire et son incid ence sur
la responsabilité de la Communauté, Revue française de droit administratif , 1996, p.583 -595;
Trifone, L., La responsabilità degli Stati in diritto comunitario: le sentenze nelle cause
"Brasserie du Pêcheur", "Factortame III" e "Hedley Lomas", Diri tto comunitario e degli scambi
internazionali , 1997 , p. 63 -89.
232 Belorgey, J. -M., Gervasoni, S., Lambert, Ch., Effectivité des recours. L'actualité juridique; droit
administratif , 2003, p. 2153 -2154; Niculeasa, M.I., op. cit. (2007), p. 500 ff; Dubouis, L. , A
propos de deux principes généraux du droit communautaire (droit au contrôle juridictionnel

90 Cătălin -Silviu Săraru

Unión de Pequeños Agricultores , point 39; Case C -222/86, Heylens , point 14).
To allow for an effective exercise of the right to such a review, contracting entities
should state the grounds for decisions which are open to review either in the de-
cision itself or upon request after communication of the decision – principle rea-
sons the decision of the contracting authority233 (Case C -222/86, Heylens ,
point 15).
Court of Justice has decided several occasions on review procedures.
Thus, in Case C -26/03, Stadt Halle and RPL Lochau , the Court stated that the
purpose of Dire ctive 89/665 is to enforce EU rules on public procurement by
means of effective and rapid remedies, particularly at a stage when infringements
can be corrected234. In another case, C -15/04 Koppensteiner GmbH , the Court
stated that the decision to withdraw an invitation to tender for a public procure-
ment contract is one of those decisions in relation to which Member States are
required under Directive 89/665 to establish review procedures for annulment,
for the purposes of ensuring compliance with the rules of Union law on public
procurement contracts and national rules implementing that law. National legis-
lation does not meet the requirement of ensuring effective judicial protection if
the national court’s role is limited to mere finding of unlawful withdrawal of call
for tender; national legislation should allow the introduction of an action for dam-
ages against the contracting authority. These two decisions illustrate the need to
improve the effectiveness of the remedies available for undertakings when are
violated EU rules on the procedure for awarding public contracts, particularly at
a stage when infringements can be corrected235.
Mechanisms for review the award procedure has to ensure completion of
an impartial monitoring of the procedure and for the unregula ted public procure-
ment.
For contracts whose value is below the threshold for applying Directives
2004/17/CE and 2004/18/CE (in present Directives 2014/23/EU and
2014/24/EU) will apply rules and principles of the EC Treaty (now the Treaty on
the Functionin g of the European Union ) and the case -law of the Court of Justice
of the European Union ( the Commission Interpretative Communication of 2006) .
The case -law of the Court indicates that in these contracts, tenderers must be able
to receive effective legal pr otection of the rights conferred by EU law236 (Case C –
50/00, Unión de Pequeños Agricultores , point 39; Case C -222/86, Heylens , point

effectif et motivation des décisions des autorités nationales qui portent atteinte à un droit
conféré par la règle communautaire) . Revue française de droit admin istrative , 1988, p. 691 –
700.
233 Dubouis, L., op. cit., 1988, p. 691 -700.
234 Kotschy, B., Arrêts "Stadt Halle", "Coname" et "Parking Brixen", Revue du droit de l'Union
européenne no. 4/2005) , p. 845 -853.
235 Grove -Valdeyron, N., Marchés publics in Annuaire de droit européen, volume III -2005.
Bruxelles: Bruylant, 2008, p. 410.
236 Dubouis, L., op. cit. (1988), p. 691 -700.

European Administrative Space 91

14). In the absence of relevant Union law provisions, it is up to the Member States
to provide the necessary rules and proced ures guaranteeing effective judicial pro-
tection. To ensure effective legal protection is necessary that the decisions detri-
mental to a person who has an interest in obtaining a public contract (such as the
decision to eliminate a candidate) to be the subje ct of a review, designed to de-
termine possible violations of fundamental rules arising from the EU primary law.

2.4. Conclusions. Harmonization of the EU Member States proce-
dures in the field of awarding and executing of the public contracts

We believe t hat the opening made by EU law and common principles
developed by the European Court of Justice, operates in favor of the use of con-
tractual techniques and dissipation gradations between public and private. Euro-
pean legislation in this area aims at opening to competition of procedures for
awarding public contracts for all enterprises across the European Union237.
The rules on public contracts were often subject to official interpretation
made by the European Commission. Such interpretation can be referred to Com-
mission Communication on concessions under Community law of 04/29/2000
(200 / C121 / 02). Management of the deployment of these contracts involving
EU funds is controlled by the European Court of Auditors conducting some re-
ports such as for example „ Special Report No 10/2000 on the public contracts
awarded by the Joint Research Centre, together with the Commission’s replies ”
(2000/C172/01).
Gradually it became clear that freedom of exchange and application of
competition rules of the common law can not be sufficient to ensure a genuine
internal market for public contracts in the European Union. To these must be
added the harmonization of procedures across Member States by means of direc-
tives governing: choose the form of adjudication, advertising, condit ions for par-
ticipation of undertakings, conditions for awarding contracts, ways of contesting
the proceedings238.
Cooperation between public authorities and business to provide funding,
construction, renovation, management or maintenance of a public infrastr ucture,
or the provision of a public service generally takes the form of public -private
partnership.
At European Union level, two types of public -private partnership (PPP)
are distinguished239:

237 For details, see Pierre Mathijsen, op. cit , 2002, p. 448 -451.
238 L. Cartou, J. -L. Clergerie, A. Gruber, P. Rambaud, op. cit. , 2000, p. 308.
239 See the Green Paper on public -private partnership and Community law on public procurement
and concessions (COM (2004) 327 final), 30 April 2004 and the Commission Communication
on public -private partnership and Community law on public procurement and conce ssions
[(COM (2005) 569 final] of 15 November 2005.

92 Cătălin -Silviu Săraru

– contractual PPP where the public -private partnership is based on purely
contractual relationships. This partnership covers various arrangements that as-
sign one or more tasks to a private partner, including designing, financing, build-
ing, renovating or operating a good or service. These issues are covered by EU
direct ives on public procurement and concessions.
– institutional PPP, involving public -private cooperation within a distinct
entity. The implementation of institutional -type PPPs can be achieved either by
creating an entity jointly owned by the public sector an d the private sector
(mixed -capital enterprise), or by taking control of an existing public enterprise by
the private sector.
In the EU Member States, public contracts are used as an administrative
action, in different ways. Overall, it is noted that, alth ough the development of
the contractual process is uneven from country to country, today we are witness-
ing a continuous growth of the contractual techniques, even between legal per-
sons of public law. This, in the general context in which it talks about the transi-
tion from “ Old Public Administration ” (based on the classic Weberian model)"
to “New Public Management ” (NPM) as a factor of convergence between Euro-
pean administrations, based on outsourcing activities through administrative or
commercial contracts240.
In this context, the public procurement and concession contracts gaining
more ground. The new model of public administration requires a new relation-
ship, radically different, between governments, public service and citizens. Today
many public organizati ons integrate their mission and the overall project in order
to honor the role that it plays both at the “macro” (public policy) and at “micro”
(satisfaction the needs of citizens). All these issues involve the organizational
changes, requiring a new appro ach to the project in public sector, the overall qual-
ity and performance. Public opinion and customer perception is an important part
of measuring the performance. The performance of public sector requires, on the
one hand, the introduction a market -type b ehavior in public services and, sec-
ondly, transferring of powers to managers and motivate them to improve perfor-
mance.
To achieve the EU desideratum to create an internal market where goods,
services, capital and persons can move freely, was needed and cr eating a compet-
itive and non -discriminatory market in the field of public contracts. The general
framework for market functioning public contracts in the European Union is cur-
rently given to the principles found in primary legislation (the Treaty on Europe an
Union and the Treaty on the Functioning of the European Union), the Union's
rules of secondary legislation (the main such regulations are given in the direc-
tives 2014/23/EU, 2014/24/EU, 2014/25/EU, 1989/665/CEE and 1992/13/CEE
and subsequent legislation relating to public procurement contracts and partly to

240 Săraru, C. S., Contractele administrative. Reglementare. Doctrină. Jurisprudență/Administrative
contracts. Legislation. Doctrine. Case -Law. Bucharest: C.H. Beck, 2009, p. 505, 506.

European Administrative Space 93

the concession contracts) and the principles drawn from the Court of Justice of
the European Union during the interpretation of laws to implement the treaties
uniformly in all Member States.
Knowledge of principles drawn from the Court of Justice of the European
Union is necessary by national legislators241 and contracting authorities for trans-
position into national law of EU legislation in the field of public contracts and
application of these rules in letter and spirit of the EU Treaties. The role of these
principles is to increase public sector performance and the degree of convergence
of administrative actions at Member States of the European Union.

Section 2. Means of staff: the public function in the EU insti-
tutions. Organization principles

Within the European Union bodies, officials are subject to special rules,
which represent the right of European civil service242.
The public office in the EU institutions brings together several thousand
officia ls (only in the European Commission, it employs over 23,000 officials
from all corners of the European Union) working to serve the general interests of
the 500 million citizens of the Union.
Officials of the European Union institutions shall be subject to the provi-
sions of the Staff Regulations of Officials of the European Communities ap-
proved by Regulation 31 (EEC), 11 (ECSC) of 18.12.1961 laying down the Staff
Regulations of Officials and the Conditions of Employment of Other Servants of
the European Econ omic Community and the European Atomic Energy Commu-
nity243, as amended.
The intervention of a statute -based regulation had the effect of placing
the public office in the so -called closed civil service category, with the civil serv-
ant having a legal and regul atory situation based on the premises of the permanent

241 Dubouis, L., La responsabilité de l'Etat législateur pour les dommages causés aux particuliers
par la violation du droit communautaire et son incidence sur la responsabilité de la
Communauté , Revue française de droit administrative, 1996, p. 583 -595; Trifone, L., La
responsabilità degli Stati in diritto comunitario: le senten ze nelle cause "Brasserie du Pêcheur",
"Factortame III" e "Hedley Lomas", Diritto comunitario e degli scambi internazionali, 1997, p.
63-89.
242On the public office and civil servant of the institutions of the European Union Constanța
Călinoiu, Verginia Vedinaș, Statutul functionarului public european , 2nd edition, Universul
Juridic, Bucharest, 2007.
243 Published in the Official Journal of the Eur opean Communities P 045 of 14.6.1962, as
subsequently amended. For the consolidated version of this regulation see http://eur –
lex.europa.eu/legal -content/RO/T XT/?uri =CELEX :01962R0031 -20140501 (last consulted on
the 15th of July 2017).

94 Cătălin -Silviu Săraru

office and the existence of an administrative hierarchy. The "career" system in
the European public service is thus enshrined.
The status of Community officials applies, of course, only in the institu-
tions of the European Union. We will discuss some ideas about it, given its role
as a potential model, structuring on minimum requirements that the public func-
tion of the European Union member states must fulfill. We anticipate the shaping
of a convergence in the public function of the member countries, sharing common
organizational principles that will outline in the future a common administrative
office of the civil service.
The European Union official shall be any person who has been appointed,
under the conditions laid down in the Statute, to a permanent post of one of the
institutions of the European Union by a written instrument of the appointing au-
thority of the institution concerned.
The Staff Regulations regulate the categories of officials of the Eu ropean
Union, their rights and obligations, the career of officials, the conditions of em-
ployment, the financial and social security benefits of the official, the disciplinary
system, the remedies against acts affecting the rights of officials, special pro vi-
sions applicable to civil servants The European External Action Service (EEAS)
as well as special and derogatory provisions applicable to officials assigned to a
third country.
The posts covered by the Staff Regulations are classified, according to
the n ature and importance of the functions to which they refer, in a function group
of administrators ("AD"), a function group of assistants ("AST") and a group sec-
retarial and administrative staff (referred to as "AST / SC"). The function group
AD comprises tw elve degrees, corresponding to the functions of leadership, con-
ception and study, as well as linguistic or scientific functions. The AST function
group shall comprise eleven degrees, corresponding to the functions of executive
and technical nature. The fun ction group AST / SC comprises six grades corre-
sponding to the administrative and secretarial functions (Article 5 (1) and (2) of
the Statute).
The Statute establishes the rule of principle that "officials belonging to
the same function group are subject t o identical conditions of recruitment and
career development" (Article 5 (5) of the Statute).
The statute prohibits any discrimination against officials in the institu-
tions of the European Union, such as discrimination based on sex, race, color,
ethnic or social origin, genetic characteristics, language, religion or beliefs, polit-
ical or other opinions, membership of a national minority, , birth, disability, age
or sexual orientation.
An official in the institutions of the European Union is required to exer-
cise his powers and act solely with the interests of the Union without requesting
or accepting instructions from any government, authority, organization or person
outside his or her institution. The official shall perform the duties entrusted to

European Administrative Space 95

him object ively and impartially and with due regard to his duty of loyalty to the
Union.
Without the permission of the Appointing Authority, the official may not
accept, from any government or any other source outside his or her institution,
honorary titles, decorat ions, favors, gifts or pay, irrespective of their nature, un-
less they shall be awarded for services rendered either before his appointment or
during a special leave for military or national service and as a result of the provi-
sion of such services.
The pri vileges and immunities enjoyed by officials are granted solely in
the interest of the European Union.

§1. The recruitment and promotion of European Union officials

The recruitment of officials from the institutions of the European Union
should be aimed a t ensuring that the most highly independent, competent, effi-
cient and integrity staff are recruited on the broadest possible geographical basis
from among the nationals of the Member States of the Communities. No posts
can be reserved for nationals of a pa rticular Member State.
The recruitment and promotion of EU officials is dominated by the
principle of the competition, which allows for certain exceptions, in the express
and limitative cases provided by the Statute (special generalibus derogant). Thus
art. Article 29 (2) of the Statute provides that the Appointing Authority may adopt
a recruitment procedure other than a recruitment procedure for the recruitment of
senior management (general or equivalent directors of grade AD 16 or AD 15 and
directors or t heir equivalents in grade AD 15 or AD 14) and, in exceptional cases,
for posts requiring special qualifications.

§2. Principles of public function in the institutions of the European
Union

The rights and duties of the European civil servant are governed accord-
ing to the State by the following principles:
1. the need to achieve absolute independence of the civil servant vis -à-
vis any government, authority, organization or person outside his / her institution
(Article 11 paragraph 1 of the Statute)
2. the n eed to ensure independence from the Member States whose na-
tionals are
3. the official must perform his duties and regulate his conduct solely in
order to achieve the interests of the European Union
4. privileges and immunities are conferred on officials ex clusively in the
interest of the European Union (Articles 23, 24 of the Statute)

96 Cătălin -Silviu Săraru

5. officials are permanently at the disposal of the institution (Article 55
of the Statute). Normal weekly working time is between 40 and 42 hours, the
working day hours being set by the Appointing Authority. In addition, as a result
of the requirements of the service or of the safety rules at the workplace, an offi-
cial may be obliged to remain at the institution, at work or at home, outside the
normal working hours.
6. officia ls are trained in the preparation of the regulations to which they
are subject and in their implementation.
These principles are often transposed into national public functions, the
tendency being obvious to the independence and professionalisation of thos e in-
volved in the preparation, adoption and enforcement of administrative decisions.

Section 3. Material means. The European Groupings of Territorial
Cooperation (EGTC). Case study – EGTC developed by administra-
tive structures in Romania and Hungary

§1. General considerations about the European Groupings of Terri-
torial Cooperation (EGTC)

European Grouping of Territorial Cooperation (EGTC) is a legal entity,
non-profit, composed of states, regional authorities and local authorities, bodies
governed by pu blic law within the European Union with the objective of facili-
tating and promoting cross -border, transnational and/or interregional coopera-
tion244 between its members for the purpose of strengthening the economic, social
and territorial cohesion of the Euro pean Union.
Establishment and functioning of the EGTC is governed by Regulation
no. 1082/2006/CE of the European Parliament and of the Council of 5 July 2006
on a European Grouping of Territorial Cooperation – EGTC245. Under the provi-
sions of art. 16 (1) of this Regulation which states that " Member States shall make
such provisions as are appropriate to ensure the effective application of this Reg-
ulation ", Romania has adopted the Government Emergency Ordinance No.
127/2007 on a European Grouping of Territoria l Cooperation246, approved by the

244 See also Spinaci, G., Vara -Arribas, G.: The European Grouping of Territorial Cooperation
(EGTC): New Spaces and Contracts for European Integration? , EIPASCOPE 2009/2, p. 5
245 Published in OJEU L 210 of 31 July 2006.
246 Published in Official Gazette of Romania no. 769 of 13 November 2007.

European Administrative Space 97

Romanian Parliament by Law. 52/2008247. Hungary adopted XCIX Act of 2007
on the European Grouping of Territorial Cooperation248.
Recently Regulation no. 1082/2006/CE was amended by Regulation no.
1302/2013 of the European Parlia ment and of the Council249, the amendments
will apply from 22 June 2014. However, according to art. 2 (1) of Regulation no.
1302/2013 EGTCs established before 21 December 2013 shall not be obliged to
align their convention and statutes with the provisions of Regulation (EC) No
1082/2006 as amended by this Regulation.
Until November 26, 2013 was notified to Committee of the Regions the
establishment within the European Union a number of 41 EGTC's250.
We emphasize that the EGTC was not created as a tool to replac e the
existing models of cooperation, but this is rather an alternative in addition to inter –
governmental cooperation models available so far251. Thus, at the European Un-
ion level, the cross -border cooperation between Member States and third coun-
tries can al so be achieved through Euroregions and Eurodistricts . But unlike
these structures, EGTC has legal personality252, thus having the opportunity to
employ staff, to have a patrimony and to participate in the judicial proceedings.
This legal stability enhances t he decision -making process between partners, their
position in the interaction with EU institutions and their ability to launch or im-
prove their international position and efficient management of programs and pro-
jects of cooperation253.

§2. Establishment an d functioning of the EGTC

The establishment of an EGTC is optional, can be done in accordance
with the constitutional system of each Member State.
May become members of an EGTC, according to art. 3 of Regulation no.
1082/2006/CE amended by Regulation no. 1302/2013, the following entities :

247 Published in Official Gazette of Romania no. 230 of 25 March 2008.
248 In the European Union for EGTC national country specific rules see http://www.interact –
eu.net/egtc/national_provisions /495/11672 , accessed on April 5, 2014
249 Published in OJEU L -347 of December 20, 2013.
250 For List of EGTCs whose establishment ha s been notified to the CoR in accordance with
Regulation (EC) 1082/2006 see https://portal.cor.europa.eu/egtc/en –
US/Register/Pages/welcome.aspx , accessed on April 5, 2014
251 Janssen, G. (ed.): Europäische Verbünde für territoriale Zusammenarbeit (EVTZ) (European
grouping of territorial cooperation – EGTC), Berlin (Juristische Schriftenreihe), 2006, p. 109
252 Zapletal, J.: The European Grouping of Territorial Cooperation (EGTC) : a new tool facilitating
cross -border cooperation and governance , Quaestiones Geographicae 29(4)/2010, p. 18 and
next; Duindam, S., Waddington, L.: Cross -Border cooperation in the Rhine -Meuse region: Aa-
chen (D) and Heerlen (NLs). Some considerations from a law and economics perspective on a
future European Grouping of Territorial Cooperation , European Journal of Law and Econom-
ics, vol. 33, issue 2/2012, p. 309.
253 Spinaci, G., Vara -Arribas, G.: op. cit. , p. 5 at 6.

98 Cătălin -Silviu Săraru

(a) Member States or authorities at national level;
(b) regional authorities;
(c) local authorities;
(d) public undertakings254 or bodies governed by public law255;
(e) undertakings entrusted with operations of services of ge neral eco-
nomic interest in compliance with applicable Union and national law;
(f) national, regional or local authorities, or bodies or public undertak-
ings, equivalent to those referred to under point (d), from third countries, subject
to the conditions la id down in Article 3a introduced by art. 1 Section 4 of the
Regulation no. 1302/2013.
Associations consisting of bodies belonging to one or more of these cat-
egories may also be members.
An EGTC may be made up of members located on the territory of at
least two Member States of the European Union. As an exception in the condi-
tions specified in Art. 3a introduced by art. 1 Section 4 of the Regulation no.
1302/2013, an EGTC may be made up of members located on the territory of only
one Member State and of one or more third countries neighbouring that Member
State, including its outermost regions, where the Member State concerned con-
siders that EGTC to be consistent with the scope of its territorial cooperation in
the context of cross -border or transnational co operation or bilateral relations with
the third countries concerned.
In view to establishing an EGTC, the members will draw up and sign the
Convention and Statute.
Convention should include mandatory, according to art. 8 of Regulation
no. 1082/2006/CE, as amended by section 10 of the Regulation no. 1302/2013
EGTC: the name of the EGTC and its registered office; the extent of the territory
in which the EGTC may execute its tasks; the objective and the tasks of the
EGTC; the duration of the EGTC and the condi tions for its dissolution; the list of
the EGTC's members; the list of the EGTC's organs and their respective compe-
tences; the applicable Union law and national law of the Member State where the
EGTC has its registered office for the purposes of the interp retation and enforce-
ment of the convention; the applicable Union law and national law of the Member
State where the EGTC's organs act; the arrangements for the involvement of
members from third countries or from OCTs if appropriate including the identi-
fication of applicable law where the EGTC carries out tasks in third countries or

254 They are provided to point b point (b) o f Article 2(1) of Directive 2004/17/EC of the European
Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of
entities operating in the water, energy, transport and postal services sectors (OJ L 134,
30.4.2004, p.1).
255 They are provided to the second subparagraph of Article 1(9) of Directive 2004/18/EC of the
European Parliament and of the Council of 31 March 2004 coordinating procedures for the
award of public works contracts, public supply contracts and public service co ntracts (OJ L
134, 30.4.2004, p 114).

European Administrative Space 99

in OCTs; the applicable Union and national law directly relevant to the EGTC's
activities carried out under the tasks specified in the convention; the rules appli-
cable to the EGT C's staff, as well as the principles governing the arrangements
concerning personnel management and recruitment procedures; the arrangements
for liability of the EGTC and its members; the appropriate arrangements for mu-
tual recognition, including for finan cial control of the management of public
funds; the procedures for adoption of the statutes and amendment of the conven-
tion.
The statutes of an EGTC shall specify, according to art. 9 para. (2) of
Regulation no. 1082/2006/CE amended by section 11 of the Re gulation no.
1302/2013 EGTC, as a minimum, the following: the operating provisions of its
organs and those organs' competences, as well as the number of representatives
of the members in the relevant organs; its decision -making procedures; its work-
ing lang uage or languages; the arrangements for its functioning; its procedures
concerning personnel management and recruitment; the arrangements for its
members' financial contributions; the applicable accounting and budgetary rules
for its members; the designati on of the independent external auditor of its ac-
counts; the procedures for amending its statutes.
Grouping name consists of a name chosen by the members accompanied
by “European Grouping for Territorial Cooperation” or "EGTC". The name of an
EGTC whose mem bers have limited liability shall include the word 'limited' , ac-
cording to art. 12 of Regulation no. 1082/2006/CE.
The registered office of an EGTC shall be located in a Member State
under whose laws at least one of the members is formed. Choosing the Stat e, in
which the Grouping will have its registered office, is important in terms of256:
– EGTC constitutional documents are prepared, recorded and modified accord-
ing to the regulations of the State where the Grouping has its registered office .
The requir ements for the publication of the convention, statutes and accounts of
an EGTC whose members have limited liability shall be at least equal to those
required for other legal entities with limited liability under the laws of the Mem-
ber State where that EGTC has its registered office.
– in matters relating to Group unregulated or only partially covered by the
provisions of Regulation will be applied the laws of the Member State where the
EGTC has its registered office;
– interpretation and application of the Convention and Statute shall be accord-
ing to EU legislation and the legislation of the Member State where the EGTC
has its registered office according to art. Article 8. (2). g) of Regulation no.
1082/2006/CE, as amended by art. 1, section 10 of the R egulation no. 1302/2013.
– control of an EGTC's management of public funds shall be organised by the
competent authorities of the Member State where the EGTC has its registered

256 See Săraru, C. -S.: Cartea de contracte administrative. Modele. Comentarii. Explicații, C.H.
Beck, Bucharest, 2013, p. 355

100 Cătălin -Silviu Săraru

office. Exceptions are the EGTC actions co -financed by the European Union
where is applied the relevant legislation on the control of EU funds and if the
authorities of the Member State where the EGTC has its registered office adopt
provisions allowing the competent authorities of other Member States to control
actions taken on their territory by the EGTC in these states, if their national law
permits, under art. 6 para. (2) of Regulation no. 1082/2006/CE;
– as regards liquidation, insolvency, cessation of payments and similar proce-
dures, an EGTC shall be governed by the laws of the M ember State where it has
its registered office, as provided by art. 12 of the Regulation.
– in terms of art. 15 of the Regulation the EU legislation on jurisdiction shall
apply to disputes involving an EGTC. In any case which is not provided for in
such EU legislation, the competent courts for the resolution of disputes shall be
the courts of the Member State where the EGTC has its registered office. Citizens
of Member States of the EGTC retains the right to appeal to the national jurisdic-
tions to exer cise the appeals against public bodies that are members of an EGTC
in respect of: (a) administrative decisions in respect of activities which are being
carried out by the EGTC; (b) access to services in their own language; and (c)
access to information.
The objective of an EGTC shall be to facilitate and promote, in particular,
territorial cooperation, including one or more of the cross -border, transnational
and interregional strands of cooperation, between its members, with the aim of
strengthening Union economic, social and territorial cohesion and overcoming
obstacles in the internal market.
In order to achieve the objectives, EGTC performs the tasks that have
been entrusted to its members in accordance with Regulation no. 1082/2006/CE
amended by Regulat ion no. 1302/2013. EGTC may carry out actions of territorial
cooperation between members of the co -financed by the European Union through
the European Regional Development Fund, European Social Fund and / or the
Cohesion Fund or self -funded.
The tasks give n to an EGTC by its members shall not concern the exer-
cise of powers conferred by public law or of duties whose object is to safeguard
the general interests of the State or of other public authorities, such as police and
regulatory powers, justice and fore ign policy.
Where an EGTC carries out any activity in contravention of a Member
State's provisions on public policy, public security, public health or public mo-
rality, or in contravention of the public interest of a Member State, a competent
body of that M ember State may prohibit that activity on its territory or require
those members which have been formed under its law to withdraw from the
EGTC unless the EGTC ceases the activity in question. Such prohibitions shall
not constitute a means of arbitrary or disguised restriction on territorial coopera-
tion between the EGTC's members. Review of the competent body's decision by
a judicial authority shall be possible.

European Administrative Space 101

The grouping may have a lifetime determined with an indication the pe-
riod expressly or, where ap propriate, an unlimited duration.
An EGTC, according to art. 10 of Regulation no. 1082/2006/CE, shall
have at least following managing, administration and control organs:
(a) an assembly, which is made up of representatives of its members;
(b) a d irector, who represents the EGTC and acts on its behalf.
The statutes may provide for additional organs with clearly defined pow-
ers.
In Europe the EGTCs contribute to local development through the imple-
mentation of projects financed from EU funds, grants f rom the national govern-
ments or from their own funds in order to: enhancing of regional economic com-
petitiveness by helping entrepreneurs, creating of jobs and promoting the invest-
ment257; conservation and enhancement of the artistic and cultural heritage258; en-
vironmental protection259; promoting of the urban260 and rural development261;
supporting innovation, research and higher education262; improving waste man-
agement263, improving of medical assistance264, etc.
The EGTCs activity is mainly achieved through:
– identifyi ng the common areas of cooperation and the creation of de-
velopment programs
– unitary approach to cross border issues through the creation of global
strategies for the development

257 see programs developed by the EGTC Abaúj -Abaújban, Arrabona European Grouping of
Territorial Cooperation, Bodrogközi European Grouping of Territorial Cooperation,
Eurocidade Chaves – Verín EGTC, the Euroregion Senza Confini EGTC, the Euroregion
Pyrenees -Mediterranean EGTC, EGTC TATRY Ltd, The EGTC Lille -Kortrijk -Tournai,
https://portal.cor.europa.eu/egtc/en -US/CoRActivities/Pages/welcome.aspx , accessed on April
5, 2014.
258 see programs developed by European Grouping of Territorial Cooperation Cities of Ceram ics,
the Espacio Portalet EGTC, https://portal.cor.europa.eu/egtc/en -US/CoRActivities /Pages/
welcome.aspx , accessed on April 5, 2014.
259 see programs developed by European Grouping of Territorial Cooperation Duero -Douro , the
Parc européen Parco europeo Alpi Marittime – Mercantour EGTC, the ZASNET EGTC,
https://portal.cor.e uropa.eu/egtc/en -US/CoRActivities/Pages/welcome. aspx , accessed on April
5, 2014.
260 see programs developed by European Urban Knowledge Network (EUKN), the EGTC
Eurodistrict SaarMoselle, https://portal.cor.europa.eu/egtc/en -US/CoRActivities/Pages/
welcome.aspx , accessed on April 5, 2014.
261 see programs developed by the EGTC Karst -Bodva, https://portal.cor.europa.eu/egtc/en –
US/CoRActivities/Pages/ welcome. aspx , accessed on April 5, 2014.
262 see programs developed by the EGTC Euroregion Aquitaine -Euskadi, https://portal.cor.
europa.eu/egtc/en -US/CoRActivities/ Pag es/welcome.aspx , accessed on April 5, 2014.
263 see programs developed by the Efxini Poli – SolidarCity Network EGTC, https://portal.cor.
europa.eu/egtc/en -US/CoR Activities/Pages/welcome.aspx , accessed on April 5, 2014.
264 see programs developed by the Cerdanya Cross -Border Hospital EGT C, https://portal.cor.
europa.eu/egtc/en -US/CoRActivities/ Pages/welcome.aspx , accessed on April 5, 2014.

102 Cătălin -Silviu Săraru

– conducting of the studies to ensure a better response to cross -border
issues.
– organizing of consultations, debates, conferences, work visits in mat-
ters of cross border cooperation
– attracting of the funding sources for projects developed
– facilitating of the management and implementation of the projects.

§3. Contribution o f EGTCs established by municipalities from Ro-
mania and Hungary to sustainable regional development

Romania and Hungary have established together two EGTC's – Banat –
Triplex Confinium Limited Liability EGTC and Gate to Europe Limited Liability
EGTC .
Roman ia and Hungary have officially communicated its intention to es-
tablish in the future Europe – building common future EGTC265. Also the two
countries have conducted negotiations for the establishment of the Békés -Arad
EGTC266.
These EGTC’s of cross -border coope ration illustrate the conception by
Schamp about "functional regions" – "the territorial cooperation should stay and
be based on existing links across borders, which together form the "functional
regions", respectively interdependent territories that do no t necessarily coincide
with the political and the administrative territorial units outlined by national bor-
ders"267. The functional regions clearly illustrate the link between territorial co-
operation and territorial development268. Border regions are usually l ocated in
geographical peripheries of their state and are often more underdeveloped than
the central regions. Cooperation across borders stimulates development and syn-
ergy by encouraging mutual business between regional firms and contacts among
local NGOs269.

265 See EGTC Monitoring Report 2012, European Union, April 2013, https://portal.cor.
europa.eu/egtc/en -US/discovertheegtc/Doc uments/Monitoring%20 Report%202012/EGTC_
MonitoringReport_2012.pdf , p. 97, accessed on April 5, 2014.
266 Idem , p. 98.
267 Schamp, E.W.: „Die Bildung neuer grenzüberschreitender Regionen im östlichen Mitteleuropa
– eine Einführung”, in Gruber, G., Lamping, H., Schamp E.W. (eds.): Neue
grenzüberschreitende Regionen im östlichen Mitteleuropa , Frankfurt (Main), Selbstverlag In-
stitut für Wirtschafts – und Sozialgeografie der J. -W.-Goethe Universität, 1995.
268 Boneva S.: The Danube Strategy and the Energy security of the Danube macro region , The DRC
Summer School on Regional Co -operation, Proceedings 2011, p. 68.
269 Ibidem.

European Administrative Space 103

The role of regional cross -border cooperation is to foster mutual learning
and traditional cultural elements and contributes to increased economic perfor-
mance and social cohesion270. Implementation of such cooperation depends on
the degree of homogeneit y of economic, political and institutional conditions, in
the administrative structures adjacent of border areas271.
Under the influence of EU policies that provide a single economic market
by abolishing internal borders and other barriers to trade, econom ic and social
disparities between the border regions of Member States tend to diminish. Cross –
border cooperation is no longer strictly an attribute of states, seen as their tradi-
tional quality, as the sole actors on the stage of international law272. An impo rtant
role is played today in cross -border policies by the administrative structures ad-
jacent of the border areas, endowed with legal personality, by development asso-
ciations created by them, and not least by transnational enterprises273.

§4. Bánát – Triple x Confinium Limited Liability EGTC

In November 2008 after a conference was born the idea of creating Banat
– Triplex Confinium Limited Liability EGTC (BTC EGTC) which was established
later on January 5, 2011 as a legal person with limited liability governed by public

270 Roper, S.: Cross -border and local co -operation on the island of Ireland: An economic
perspective , „Political Geography”, vol. 26, Issue 5/2007, p. 554.
271 For an analysis of factors to promote the cross -border cooperation among the countries of South –
Eastern and Central Europe, see: Alexandru, I. (coord.) : Drept administrativ (Administrative
Law), Omnia, Brașov, 1999, p. 733 -736 (section 16.3.6. Une le aspecte privind promovarea
cooperării transfrontaliere în România /Some aspects on promoting of cross -border cooperation
in Romania); Stan, D. : La règlementations juridique de la cooperation transfrontalière, dans
les documents internationales de la Ro umanie signes avec ses voisins (I) and (II) , “International
Law Notebooks” no. 2/2008 and no. 3/2008; Ibreljic, I., Kulenovic, S. : Economic regional and
cross -border cooperation in the South -East Europe for the purpose of its faster integration in
the Eur opean Union , 44th Congress of the European Regional Science Association Porto,
Portugal 25 -29 August, 2004. Paper provided by European Regional Science Association in its
series ERSA conference papers, http://ideas.repec.org/p/wiw/wiwrsa/ ersa04p224.html;
Dimitrov, M., Tsiapa, M., Petrakos G.: Cross -Border Cooperation in South -eastern Europe,
“Eastern European Economics”, vol. 41, no. 6/November -December 2003, p. 5 -25; Larion, A.,
Nedelea, M. -O., Elmazi, L.: The Process of EU integration, regional developme nt and cross
border cooperation , “The Annals of the "Stefan cel Mare" University of Suceava. Fascicle of
The Faculty of Economics and Public Administration”, vol. 8, issue 1, June 2008, p. 44 -49.
272 See Săraru, C. -S.: The cross -border cooperation agreement , Juridical Tribune, Volume 1, Issue
1, June 2011, p. 107.
273 See on global reconsideration of the role of the states under the influence of construction of the
European Union: Alexandru, I.: Trata t de administrație publică (Treatise of public
administration) , “Universul Juridic”, Bucharest, 2008, p. 901 -912; Apostol -Tofan, D.:
Instituțiile administrative europene (European administrative institutions) , C. H. Beck,
Bucharest, 2006, p. 114 -128; Sărar u, C -S : Spațiul administrativ European (European
Administrative Space) in Alexandru, I. et al.: Drept administrativ European (European
Administrative Law) , Lumina Lex, Bucharest, 2005, p. 95 -146.

104 Cătălin -Silviu Săraru

law, constituted on u nlimited duration and having its registered office in the city
Mórahalom from Hungary.
Banat – Triplex Confinium Limited Liability EGTC members are274 37
local authorities from Hungary275, 37 local authorities from Romania276 and eight
localities from Serbia as members observers277. In 2012, the Hungarian munici-
palities Csengele, Kistelek, Zákányszék and the Romanian municipali ties of
Foeni, Giulvăz, Sag have joined at the Grouping.
The Bánát -Triplex Confinium EGTC involving 342 000 inhabitants in a
3.500 km²'s area.
Governing bodies of the BTC EGTC are: General Assembly comprising
all members, Chairman, Board of Directors com posed of five members and su-
pervisory board.
The BTC EGTC was set up to enhance the dynamism of the border areas
and to raise their competitiveness through economic and social cohesion activities
in agricultural innovation, renewable energy resources, infr astructure, education
and training. The main purpose of EGTC is implementation of programs or pro-
jects, for territorial cooperation co -financed by the European Union through the
European Regional Development Fund, European Social Fund and / or the Cohe-
sion Fund.
In 2012, the budget of the Bánát -Triplex Confinium EGTC was 34 000
EUR278. It was made up of membership fees to cover operations. EU funding and
Hungarian subsidies may also form part of the budget.
The precondition for an operative structure is the availability of funding.
The financial endowments of EGTC reveal huge differences across Europe de-
pending on the numbers of inhabitants of the areas covered as well as the eco-
nomic standing of the regions involved. Eurométropole Lille -Kortrijk -Tournai,
with a comparatively large annual budget of about EUR 1.5 million, stands next

274 For a description of the administrative -territorial compo nent see http://www.btc -egtc.eu/en/ –
local governments.
275 Local authorities, members of Hungary are: Apátfalva, Ambrózfalva, Ásotthalom, Bácsborsód,
Bordány, Csanádalberti, Csanádpalota, Csikéria, Domaszék, Ferencszállás, Forráskút, Földeák,
Gara, Kelebia , Királyhegyes, Kiskunhalas, Kiszombor, Klárafalva, Kövegy, Kunbaja, Madaras,
Magyarcsanád, Makó, Maroslele, Mórahalom, Nagyér, Nagylak, Óföldeák, Öttömös, Pitvaros,
Pusztamérges, Röszke, Ruzsa, Tompa, Újszentiván, Üllés.
276 Local authorities, members of Ro mania are: Banloc, Beba Veche, Birda, Cărpinis, Cenad, Cenei,
Checea, Ciacova, Comloșu Mare, Denta, Dudestii Vechi, Deta, Gataia, Ghilad, Giera, Gottlob,
Iecea Mare, Jamu Mare, Jebel, Jimbolia, Lenauheim, Liebling, Livezile, Lovrin, Moravita,
Nitchidorf, O telec, Periam, Pesac, Sacalaz, Sanmihaiu Roman, Sannicolau Mare, Sanpetru
Mare, Tomnatic, Uivar, Varias, Voiteg.
277 The members observes from Serbia are: Ada, Zitiste, Čoka, Kanjiža, Novy Kneževac, Senta,
Nova Crnja, Kikinda.
278 See the portal European Group ing of Territorial Cooperation – https://portal.cor.europa.eu/ egtc
/en-US/CoRActivities/Pages/B%C3%A1n%C3%A1t -Triplex -Confinium.aspx , accessed on
April 5, 2014.

European Administrative Space 105

to a large group of EGTCs (about one third of all groupings) that have annual
budgets ranging between EUR 25 000 and 75 000279.
Since 2012, the Bánát -Triplex Confinium EGTC implement ed several
cross -border cooperation projects280:
– "Updating of the development strategies of local municipalities and cre-
ation of cross -border common sectorial development operational programmes
and projects". This project aimed to constitute a modern, deve loped and compet-
itive economy in the border region, with a 99.800 EUR's budget (85% EU fund-
ing).
– "Content development of the SMEs related services and the establish-
ment and operation of a unified business development network" aimed to create
cooperation opportunities for SMEs through the development of an agrarian net-
work and a food industry with transport and storage infrastructure. The total
budget of the project was EUR 90 128 (85% EU funded). From March 2013 to
March 2014.
– The project "Dance and Mus ic without borders" organised several
events along the border areas. Total budget of EUR 87 771 (85% EU funded).
– "Strengthening co -operation and network resources in favour of achiev-
ing economic growth" was a project supporting the creation of business c ooper-
ation, with a total budget of 75 770 EUR (ERDF + National contribution EUR 71
981.96; EGTC contribution EUR 3 788.52). From the 1 March 2012 to 28 Feb-
ruary 2013.
– The project "ExpoTrain SME" organised cross -border Expo and Train-
ing Sessions to empowe r SMEs, with total budget of 87 771 EUR (EU contribu-
tion of EUR 74 605.35, EGTC contribution EUR 8 764.05). From 1 March 2013
to 28 February 2014.
– The project "0041 ETT", with a budget of 5 000 000 HUF by the Hun-
garian Ministry of Justice. From 1 Novembe r 2011 to 31 May 2012.
So, thanks to the involvement of members of the EGTC BTC were de-
veloped in a short period of time, economic and cultural projects, which is a
promising start. However, to sustainable economic development in the border
area is necess ary to develop primary transport infrastructure, the education and
the exploitation of renewable energy resources. The transboundary EGTC offers
the chance that through joint programs financed by the EU to be created and / or
upgraded the infrastructure th at will be then the engine of economic development.

279 See EGTC Monitoring Report 2012, European Union , April 2013, https://portal .cor.europa.
eu/egtc/enUS/discovertheegtc/Documents/Monitoring%20Report%202012/EGTC_Monitori
ngReport_2012.pdf , p. 88, accessed on April 5, 2014.
280 See the portal European Grouping of Territorial C ooperation – https://portal.cor .europa.eu/egtc
/en-US/CoRActivities/Pages/B%C3%A1n%C3%A1t -Triplex -Confinium.aspx , accessed on
April 5, 2014.

106 Cătălin -Silviu Săraru

§5. Gate to Europe Limited Liability EGTC

Founding members of Gate to Europe EGTC are municipalities Nyí-
radony, Derecske, Hajdúhadház, Újfehértó (Hungary) and Săcueni, Valea lui
Mihai, Cherechiu and Carei (Romania). The final decision of the Court of Buda-
pest, on the establishment of the EGTC was given on 4 May 2012. Gate to Europe
EGT C was established as a legal person with limited liability governed by public
law, constituted of unlimited duration and with registered office in Nyíradony
city from Hungary.
The management bodies of Grouping are: General Assembly composed
of eight mayors who are responsible for making decisions for EGTC; Supervisory
Committee composed of three mayors responsible for controlling the financial
activities of the EGTC. This committee meets once a year.
The Gate to Europe EGTC involving around 88 000 inhabitants in a
808,78 km² area.
In future EGTC wants cooptation of new municipalities in Hungary
(Újléta village; Álmosd village; Téglás city; Nyírmártonfalva village; Nyíracsád
village) and Romania (Tasna d city; Marghita city; Curtuiseni village; Beltiug vil-
lage; Diosig city, Simian village) 281.
The EGTC was created as a platform for mayors to work together on joint
cross -border projects and programmes. These activities are based on integral ter-
ritorial inv estment (ITI).
Gate to Europe EGTC aims reinforce economic and social cohesion be-
tween its members as part of cross -border cooperation and the implement re-
gional development plans and projects. The main sector of activities is tourism.
In future Gate to E urope EGTC aims to develop policies to provide
young local entrepreneurs with new skills, create an agricultural organisation that
addresses fragmentation of lending in the area, and develop recognised brands in
the area282.
In 2012, the budget of the Gate to Europe EGTC was 16 Million HUF
(approximately 54 000 EUR) 283.
Between 2 January 2012 – May 31, 2012 Gate to Europe EGTC has re-
ceived the program "Aid budgetary for the European Territorial Associations"
conducted by the Local Administration of Town Nyíra dony284.

281 See EGTC Monitoring Report 2012, European Union, April 2013, https://portal .cor.europa.
eu/egtc/en -US/discovertheegtc/Documents/Monitoring%20Report%202012/EGTC_Monitori
ngReport_2012.pdf, p. 23, accessed on April 5, 2014.
282 Ibidem .
283 See the portal European Grouping of Territorial Cooperation – https://portal .cor.europa.
eu/egtc/en -US/CoRActivities/Pages/ Gate -to-Europe.aspx , accessed on April 5, 2014.
284 See the site Gate to Europe EGTC – http://ro.europakapu.eu/Proiecte , accessed on April 5, 2014.

European Administrative Space 107

Gate to Europe EGTC has not implemented yet any EU -funded pro-
ject. However, it is planning to participate in the European Territorial Coopera-
tion Hungary -Romania Program (ETC HU -RO), the South -East Europe Program
(SEE TCP) and the Danube Strategy285.
We observe, therefore, that there is a desire to achieve sustainable joint
development programs, but we appreciate that this will be not achieved in the
future without the implementation of EU -funded projects and without the attract-
ing of new members in t he border region that would increase the administrative
capacity required for implementation of tourism programs, agricultural programs,
etc.

§6. Analytical presentation of EGTC Bánát -Triplex Confinium and
Gate to Europe EGTC

A comparative analysis of t he two EGTC is made in the table below:

EGTC Regis-
tered
office Date
set
up Budget
2012 Members Policy area
where
EGTC is
active286 Appli-
cable
law Operat-
ing time Lan-
guages Key indi-
cators URL
BTC
EGTC Móra-
halom,
Hun-
gary 2011 EUR
34 000. 37 Hungar-
ian m unici-
palities and
37 Roma-
nian munic-
ipalities.
8 Serbian
municipali-
ties as ob-
server’
members. Entrepre-
neurship,
start-up &
strategy de-
velopment,
culture,
sports Hun-
garian
public
law Unde-
fined,
long-term Hun-
garian,
Roma-
nian,
English Inhabit-
ants: 342
000
Surface
area: 3
500 Km2
www
.btc-
egtc.
eu
Gate to
Eu-
rope
EGTC Nyí-
radony,
Hun-
gary 2012 HUF
16 Mil-
lion
(ap-
proxi-
mately
EUR
54 000) 4 Roma-
nian munic-
ipalities.
4 Hungar-
ian munici-
palities. Entrepre-
neurship;
tourism de-
velopment;
education,
training (in
particular
for the
youth) Hun-
garian
public
law. Unde-
fined,
long-term Hun-
garian,
Roma-
nian,
English Inhabit-
ants: 88
000 (ap-
proxi-
mately
half from
each
country)
Surface
area:
808.78
Km2
. http:/
/ww
w.eu
ropa-
kapu
.eu/

285 See the portal European Grouping of Territorial Cooperation – https://portal.cor.europa.
eu/egtc/en -US/CoRActivities/Pages/Gate -to-Europe.aspx , accessed on April 5, 2014 .
286 See EGTC Monitoring Report 2012, European Union, April 2013, https://portal.cor .europa.eu
/egtc/en -US/discovertheegtc/Documents/Monitoring%20Report%202012/EGTC_Monitoring
Report_2012.pdf , Annex 2: Fields of activity in detail, accessed on April 5, 2014.

108 Cătălin -Silviu Săraru

We observe that the two EGTC have both the registered office in Hun-
gary, they are constitute an indefinite period and existing under the rules of public
law in Hungary. Establishing of the EGTC registered office in Hunga ry deter-
mines, under the provisions of Regulation no. 1082/2006/CE amended by Regu-
lation no. 1302/2013, the application of Hungarian public law regarding: prepa-
ration, modification and interpretation of the EGTC constitutional documents;
controlling the ma nagement of public funds used by EGTC; the dissolution and
liquidation procedures; resolving issues related to Group unregulated or only par-
tially covered by the provisions of the EU Regulation; disputes involving EGTC
in cases not covered by EU law and by the jurisdiction of the Court of Justice of
the European Union.
Also both EGTC have the official languages Hungarian, Romanian and
English and both have sites of presentation.
On the other hand, Bánát -Triplex Confinium EGTC has more experience
being es tablished a year earlier and with a greater number of members and there-
fore a greater number of people and a larger territorial area. Despite this, we note
that Gate to Europe EGTC , benefiting from the "Aid budgetary for the European
Territorial Associatio ns" managed to have a bigger budget than the Bánát -Tri-
plex Confinium EGTC . This emphasizes the need of involving a financial strength
of regional municipalities (cities, districts) to contribute to the budget of the
EGTC.

§7. Conclusions

EGTC are design ed to help simplify the process of territorial cooperation
on the borders of the Member States by providing a clear and coherent framework
for interventions at local, regional and national levels, and preventing the consti-
tutional, legal and financial barr iers.
The two EGTCs set up by local authorities in Romania and Hungary –
Bánát -Triplex Confinium EGTC and Gate to Europe EGTC – are just starting out.
As time passes, Romania and Hungary should establish a network of EGTCs in
which are members the adminis trative units in the border area (villages, towns,
counties) and to be sought funding from the structural funds of European Union
(European Regional Development Fund, European Social Fund, the Cohesion
Fund) to develop joint programs that contribute to imp roving the transport infra-
structure, protection of natural resources, transport and production infrastructure
of energy, health care centres’, programs enhancing tourism potential and in other
areas of common interest.
The EGTCs with an older history have developed outstanding programs
through EU funds. Thus it is worth mentioning the "CreaMed" project developed
by the Euroregion Pyrenees – Mediterranean EGTC formed by the Mediterranean

European Administrative Space 109

regions from France and Spain. With a budget of 1.3 million euros, of w hich 75%
EU Contribution, this project was developed between 2010 -2012 and contributed
to promote the Mediterranean industry by developing innovative and creative
techniques in Mediterranean companies and led to growth in the area287.
The EGTCs experience wi th an older history shows that for access to the
consistent financial sources should be attracted in addition to the villages and
cities, also greater administrative territorial units (border counties). We also rec-
ommend the creation of programs through wh ich the cross -border EGTCs be sup-
ported by the governments of the two countries by providing financing from the
national budgets.
Under the terms of Regulation no. 1302/2013 EGTC will be members of
an EGTC and undertakings responsible for providing servic es of general eco-
nomic interest. Therefore, it opens the way for an EGTC to be used in the future
to manage jointly of public services, with a particular focus on services of general
economic interest or infrastructure. Consequently, public or private unde rtakings
that provide services of general economic interest alone or through associations
(eg. the intercommunity development associations with the object of activity pub-
lic utility services288 in Romania ) could become members of the EGTC, thus ex-
tending the cross -border and interregional cooperation in education and training,
health care, social needs related to health and long -term care, childcare, access
and reintegration in the labour market, social houses, support and social inclusion
of vulnerable group s etc. So could achieve knowledge transfer at the level of best
practice, and would reduce development disparities between different cross -bor-
der communities.
Finally, we emphasize that the cross -border EGTCs, operating a “reallo-
cation of authority” 289 from the state level to local administrative units’ adjacent
border areas, can lead to mitigation of regional imbalances. Thus, EGTCs are
away of promoting good neighbourliness, stimulating balanced economic devel-
opment and social stability by building local a nd regional resources in joint pro-
jects.

287 For de tails about this project see http://www.creativity4med.eu/ , accessed on April 5, 2014.
288 About the establishment and functioning of such associations see Săraru, C. -S.: op. cit. (Cartea
de contracte administrative), p. 281 -370.
289 Alexandru, I., op. cit. (Tratat de administrație publică), p. 903.

Chapter V
General principles of European Administrative Law

Section 1. Introductory explanations

In some countries such as Belgium, France, Greece, Ireland and the UK,
it is noted that the general princi ples of administrative law, designed to lay down
standards and suggest a behavioral pattern of civil servants, appear in different
parts of the legislation in force, of the parliament, specific parts of the delegated
legislation or courts of law ruling in disputes involving the public administration.
Unlike these, other countries have imposed general codification of the adminis-
trative procedure in order to systematize these principles. Thus, Austria (1925),
Belgium (1979), Denmark (1985), Germany (1976), Hu ngary (1957), the Neth-
erlands (1994), Poland (1960), Portugal (1991) and Spain (1958)290.
At national level, these principles are included in administrative institu-
tions and procedures at all levels. Public sector actors are legally obliged to com-
ply with th ese legal principles and their compliance is controlled by independent
control bodies, judiciary systems and judiciary forces, parliamentary scrutiny
and, in some cases, authorized individuals291.
At European level, it should be noted that most of the genera l principles
of European Administrative Law have been developed by the European Court of
Justice, being developed by the practice of the European Mediator and the Euro-
pean Code of Good Administrative Behavior developed by the European Court
of Justice. Som e of these principles are currently being developed by the Charter
of Fundamental Rights of the European Union.
These principles underpin the drafting of the European Union Admin-
istrative Procedure Code292 by the Research Network on EU Administrative
Law (Re NEUAL293). The draft was presented to the plenary of the European Par-

290 See Cătălin -Silviu Săraru, Capitolul 3 – Principiile generale ale dreptului administrativ
european , in Ioan Alexandru, Cătălin -Silviu Săraru a.o., Drept administrativ european , Lumina
Lex, Bucharest, 2005, p. 156 -177; Cătălin -Silviu Săraru, Considerații cu privire la principiile
Spațiului administrat iv european și la necesitatea includerii lor în proiectul Codului
administrativ român , „Caietul Științific” ISAR no. 7/2005, Section for Legal and
Administrative Sciences, 2005, p. 12 -41.
291 see to that effect Sigma nr. 27, OECD, Principles for Public Admin istration.
292 See Herwig C.H Hofmann, Jens Peter Schneider, Jacques Ziller, Dacian C. Dragos, Codul
ReNEUAL de procedura administrativa a Uniunii Europene , Universul Juridic, Bucharest,
2016.
293 For the documents developed by the EU Research Administrative N etwork research network,
see www.reneual.eu .

European Administrative Space 111

liament and formed the basis of the European Parliament's resolution of 15 Janu-
ary 2013 calling on the European Commission to submit a proposal for an act on
the EU's administrative procedu re [2012/2024 (INL)].
The principles of public administration and public service law are often
difficult to define, sometimes appearing in some antinomy. Thus, efficiency
seems to be non -existent in some procedures; loyalty to the government seems to
be in opposition to professional integrity and political neutrality; some decisions
seem to be sometimes taken out of positive legislation, etc. That is why the doc-
trine refers to the existence of "blind concepts" related to the elusive nature of the
principles of public administration. "Blind concepts" are frequent concepts, with
elusive content or even vague principles that are issued and redefined by courts
of law or other public authorities approved in particular cases294. This lack of
clarity raises numerous legal disputes, which are subject to trial by the courts of
justice, which must correlate their previously defined definitions with social val-
ues and perceptions that evolve over time. Consequently, the conceptual outline
of these principles remains uncl ear on a permanent basis. "Blind concepts" are,
therefore, those of good faith, reasonableness, pursuit of general good and loy-
alty. Virtually all legal principles can be categorized as "blind concepts." At-
tempts to ensure detail in these elusive aspects t end to lead to inconsistency and
contradiction. Contradiction and discrepancy also cause difficulties in updating
principles by affecting legal influences. From a legal perspective, appealing to
"blind principles" seems appropriate due to their malleabilit y in disparate situa-
tions. However, from the point of view of the behavior of civil servants and public
authorities, it is necessary to develop the general principles established by the
Court through a specific doctrine.
In order to undertake a scientific study on a category of social problems,
we must first approach the setting of the method of study, namely the determina-
tion of the research and reasoning procedures most suited to the study of these
problems and allowing in -depth examination of the social facts, varied and mul-
tiform, by introducing a principle of unity and order295. The advisable method can
not differ from that established for other public law branches296. Therefore, we
will have to deal with observation and analysis work. The manifestations of the
legal life that coordinate the administration to uncover the principles through
which the relations between the Union, states and individuals are ensured must
be examined. On the other hand, the methodological approach to European ad-
ministrative law m ust be centered on the principle of functionality that seeks the
truth behind labels, trying to identify the substance of the rights, powers and legal
obligations that are recognized and enforced in various legal systems.

294 Sigma Paper no. 27.
295 Paul Negulescu, op. cit. (Principes du Droit International Administratif) , 1935, p. 28.
296 Idem , p. 28.

112 Cătălin -Silviu Săraru

By applying the induction , we can reach with general caution, general
conclusions and the formulation of principles. These principles must be applica-
ble to new cases created by social life and which the legislator did not foresee,
given that the purpose of any legal reasoning is to find so lutions to a human con-
flict. In this study, contact with social realities must not be lost, which can respond
to the need to create European administrative services and the principles that gov-
ern them. Studying social reality in principle allows for the di scovery of interde-
pendence and the need for cooperation between states, individuals and the Union,
making it possible to create bodies to meet these needs and the principles of their
organization and functioning.
The major concern in this area is to reconc ile the individual legal rights
with protection with the requirements of an effective and efficient administration
of the Union. That is why, many times, the Court has taken into account, along
with the interest of the citizen's protection by law and the s o-called "administra-
tive reasons"297.
The general principles of European Administrative Law can be systema-
tized into four groups298:
1) trust and predictability;
2) openness and transparency;
3) responsibility;
4) efficiency and effectiveness.

Section 2. Trust and predictability

These goals can also be identified by legal certainty and security in ad-
ministrative actions and decisions. These principles actually aim at eradicating
arbitrariness in public affairs.
A principle of trust and predictability is the principle of "administra-
tion by law" or of the lawfulness of the administration. Public authorities make
certain decisions in accordance with the rules and general principles applied im-
partially (the principle of non -discrimination) to any person who re quests them.

297 Case 39/84 Maizena GmbH v HZA Hamburg -Jonas , paragraph 22, on the deduction of monetary
compensatory amounts paid for the basic product for the purpose of calculating monetary com-
pensatory amounts for the by -product.
298 Sigma Paper no. 27, OECD, Principles for Public Administration , 1998, document t hat can be
accessed here: http://unpan1.un.org/intradoc/groups/public/documents /nispacee/unpan00680
4.pdf (last consulted on the 15th of July 2017); The G eneral Principles of EU Administrative
Procedural Law, study prepared in 2015 under the aegis of the European Parliament which can
be consulted here: http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/ 519224/IPOL_
IDA%282015%29519224_EN.pdf (last consulted on the 15th of July 2017).

European Administrative Space 113

In the French doctrine, Carré de Marlberg emphasizes that the admin-
istration must remain intra legem , that is to say, within the limits set by the law,
and can only be done according to it, namely secundum legem , so according to
the provisions of the legislative texts and only in their basis. "The law is not only
the limit of administrative activity, it is also its condition"299. The regime of the
rule of law implies that the limits imposed by the state are in the interest of indi-
viduals so that they have the legal possibility to act before a court that is able to
cancel or reform the administrative act damaging to the individual.
The public administration must decide according to the laws in force and
the interpretative criteria established by th e courts of justice, without considering
any other aspect. The letter of the law opposes arbitrary power, relationship or
any other deviation. This jurisprudential principle is taken over by the European
Code of Good Administrative Behavior of 2001, which states in Article 4 entitled
"Legitimacy" that "The official shall act in accordance with the law and apply the
rules and procedures laid down by Union law. In particular, the official shall en-
sure that decisions affecting the rights or interests of person s have a legal basis
and their content is in accordance with the law. "
The principle of legality relates to the principle that a public authority is
not normally entrusted with exclusive decision -making power, which is incon-
sistent with the laws in force. This principle is considered to be based on the
French doctrine which speaks of "preeminence of regulatory acts on individual
acts of an official public authority"300.
Another notion of legality is that of legal competence. Thus, public au-
thorities can only decide on issues within their legal jurisdiction. Jurisdiction
means a collection of legally predetermined tasks for the proper functioning of
the public service, by virtue of which the official may decide on a matter of public
interest, which not only au thorizes the person concerned to make a decision but
also compels take responsibility for this. A competent public authority can not
waive this responsibility. The notion of competence is strictly defined, so that the
decision of an unauthorized, incompete nt person is null and will be declared as
such by the European Court of Justice. Control of legality of acts issued by EU
institutions is carried out through an administrative procedure by the European
Ombudsman (Article 228 TfEU) through a political proce dure by the European
Parliament's Committee on Petitions and by a European Court of Justice (Article
251 et seq., TfEU).
Trust and predictability do not contradict the discretionary power of the
administration if it is exercised within the limits of the la w. Practically, the dis-
cretion of the administration is not confused with arbitrariness. In French law, the
discretionary power evokes, lato sensu "the freedom of decision and action of the

299 Carré de Marlberg, Contribution à la théorie générale de l'État , Paris, Ed. Sirey, 1920, vol I, p.
448.
300 SIGMA Papers no. 27.

114 Cătălin -Silviu Săraru

executive in the law". It represents for the administration "freed om of apprecia-
tion, action and decision". In German doctrine, the notion evokes for administra-
tion "a margin of possible and necessary conduct in law enforcement." The de-
termination of the mode of action in a specific case is not only influenced by
legalit y causes, but also by considerations of opportunity301. The European Court
of Justice ruled in its decision no. 280/1980 on the selection of civil servants that
"It is up to the administration to designate the selection criteria by virtue of its
discretionar y power and taking into account the requirements of organizing and
rationalizing services". The Court of Justice has repeatedly stressed, and espe-
cially in cases with more spectacular aspects, that it seeks to respect the limits of
discretionary power and to oppose unlawful clientelism as regards the right of
European civil service. When the administrative decision fails to respect the ex-
ternal boundaries that the law establishes for the discretion of the administration,
or, in other words, when the adminis tration orders a legal effect unforeseen by
law, there is excess power. In general, in the national doctrine, it is appreciated
that the more controllable the forms of control of the exercise of the public power
exercise, the more the risk that the adminis tration acts with excess power becomes
lower302.
Decisions in which discretionary power is manifested therefore relate to
issues which, within a legal framework, confer on the public authority some dis-
cretion; this in no way implies deviation from the letter of law. The need for dis-
cretionary power arises from the fact that the legislation can not foresee any kind
of situation that could interfere over time. Therefore, this status is expressly
granted to public authorities. The European Court of Justice has d eveloped a case –
law of the discretionary power in public administration, setting strictly the frame-
work for its exercise. Thus, public authorities are obliged to act only in good faith,
to pursue the public interest in a reasonable manner, to follow the co rrect proce-
dures, to comply with the requirements of non -discrimination and to pursue the
principle of proportionality. In other words, the discretionary power can not op-
erate without respecting the general principles of the public administration law,
since they actually create a counterbalance to the decision -making power given
to public authorities. By the judgment in Case C -269/90303, the Court has held
that, in cases where the Community institutions have a certain discretion, it is
necessary to respect th e guarantees afforded by the Community legal order in

301 Jürgen Schwarze, op. cit. (Droit administratif européen), 1994, p. 274 -294, cited by Constanța
Călinoiu, Verginia Vedinaș, Teoria funcției publice comunitare , Lumina -Lex, Bucharest, 1999 ,
p. 121.
302 Dana Apostol Tofan, Puterea discre ționară și excesul de putere al autorităților publice , All
Beck, Bucharest, 1999, p. 18.
303 Arrêt de la Cour du 21 novembre 1991. Technische Universität München cont re Hauptzollamt
München -Mitte. Demande de décision préjudicielle: Bundesfinanzhof – Allemagn e. Tarif
douanier commun – Franchise pour appareils scientifiques – Valeur scientifique équivalente.
Affaire C -269/90. Recueil de jurisprudence 1991 page I -05469.

European Administrative Space 115

administrative proceedings. Those guarantees include, in particular, the obliga-
tion for the competent institution to examine with care and impartiality all the
relevant elements of the case, to listen t o the person who will bear the conse-
quences of the issue of the act, to inquire beforehand as to how the act will be
received and to motivate the decision in a sufficient manner.
Other principles that play an important role are the principle of legiti-
mate expectation304 and the principle of legal certainty . Any individual who
finds himself in a situation where the administration has provided him with pre-
cise assurances, giving rise to his hopes of well -founded hopes, is believed to
have gained legitimate conf idence in the action of the administration305. Further-
more, the case -law of the European Court of Justice states that economic opera-
tors are not entitled to use legitimate expectations in maintaining an existing sit-
uation which can be altered within the disc retion of the Community institutions,
particularly when it comes to decisions taken with a view to creating the single
market, and the subject of the regulation is a permanent adaptation to changes in
the economic situation (ECJ judgment 424/85).
The princ iple of legal certainty concerns the safety of the legal circuit.
This principle precludes a Community act from being applied from a date prior
to its publication. The principle also implies that a regulation imposing duties on
the taxpayer must be clear a nd precise, so that it can know its rights and obliga-
tions unambiguously (ECJ C -337/88). Various institutions of administrative law
are organized in accordance with the principles of legitimate trust and legal cer-
tainty. The withdrawal of an unlawful act i s permissible only if it intervenes under
certain conditions strictly specified by the Court: withdrawal of the act within a
reasonable time (a period of two months or more from the issue must be consid-
ered reasonable and a longer term two years must be re garded as excessive –
Judgment T -20/96), observance of the principle of legal certainty and observance
of the principle of the legitimate expectation of the beneficiary of the act which
appeared to be apparent in its legality306. The decisive moment from whi ch it is

304 See also Sylvia Calmes, Du principe de protection de la confiance légitime en droits all emand,
communautaire et français , Paris, Dalloz, 2001.
305 Arrêt du Tribunal de première instance (première chambre élargie) du 16 octobre 1996. Efisol
SA contre Commission des Communautés européennes. Règlement (CEE) nș 594/91 sur les
substances qui appau vrissent la couche d'ozone – Attribution de quotas – Licences d'importation
– Refus d'octroi – Demande en indemnité – Protection de la confiance légitime. Affaire T -336/94.
Recueil de jurisprudence 1996 page II -01343 .
306 Arrêt du Tribunal de première instan ce (cinquième chambre) du 21 juillet 1998. John Mellett
contre Cour de justice des Communautés européennes. Fonctionnaires – Recevabilité – Titula-
risation – Confiance légitime – Egalité de traitement. Affaires jointes T -66/96 et T -221/97. Re-
cueil de jurispr udence – fonction publique 1998 page IA -00449; II -01305

116 Cătălin -Silviu Săraru

believed that there is confidence in the apparent legality of the act in the con-
science of the addressee is the moment of notification of the act and not the date
of its adoption or withdrawal307.
Another principle in favor of trust and predictabili ty is the principle of
proportionality308. This means that the administrative action must proceed in
proportion to the objective pursued and the legal completion, respectively, with-
out bringing any aspect of the public that would facilitate the achievement o f the
proposed and legitimate aim. Proportionality is closely related to the reasonable-
ness. It also means that it is illegal to apply the law only when it comes through
an advantage unintentionally omitted by law. This may be what is called abuse
of admin istrative power . Proportionality is particularly relevant in cases of ad-
ministrative inquiries (cases of expropriation) in which individuals are privately
owned by the owner in favor of the public interest.
It is generally appreciated that administrative p roportionality can be an-
alyzed at least as a result of the combination of three elements (the decision taken,
its purpose and the factual situation to which it applies), but equally as part of a
wider ensemble, but homogeneous, almost as a key notion of ad ministrative law
and administration science309.
J. Ziller points out that, from a European perspective, the principle of
proportionality is present in the public law of most EU countries310. The author
considers that explicit recognition of the principle of wr itten law, jurisprudence
or doctrine is increasingly common, but a distinction should be made between
countries where this principle applies to administrative law as a whole and those
in which its use is limited to the field of application of EU law. At le ast four
countries would enter the first category. Thus, for more than a century, the ad-
ministrative law in Germany, the one in Portugal, following the adoption of the
1976 Constitution, Austria, 25 years and the Netherlands, for 20 years explicitly
enshri nes the principle of proportionality as a fundamental principle of public law
and it would seem that the Nordic countries could also be included in this cate-

307 Arrêt de la Cour (sixième chambre) du 17 avril 1997. Henri de Compte contre Parlement euro-
péen. Fonctionnaires – Décision reconnaissant une maladie professionnelle – Retrait d'un acte
administratif – Confiance légitime – Délai raisonnable – Pourvoi. Affaire C -90/95 P. Recueil de
jurisprudence 1997 page I -01999
308 On the principle of proportionality in EU law and its transposition into Romanian law see Marius
Andreescu, Ruxandra Andreescu, Principiul pr oporționalității în dreptul comunitar. Propunere
de revizuire constituțională , „Revista de Drept Public” no. 3/2007, p. 25 -38. Given the
particular importance of this principle in limiting the discretionary power of public authorities
and in the exercise o f fundamental citizenship rights, the authors propose by law to introduce a
new paragraph to art. 1 entitled The Romanian State of the Romanian Constitution stipulating
that " The exercise of state power must be proportionate and non -discriminatory " – Mariu s
Andreescu, Ruxandra Andreescu, op. cit. , p.38.
309 Dana Apostol Tofan, op. cit. (Puterea discreționară…) , 1999, p. 47.
310 J. Ziller, Le principe de proportionnalité en droit administratif et droit communautaire , in
„L’Actualité juridique -Droit administratif”, of 20 June 1996, special number, p. 185.

European Administrative Space 117

gory. In other countries, such as Italy, Spain and Ireland, even if an explicit con-
fession has rece ntly occurred, the use of the principle seems limited to the direct
scope of EU law. In other countries, such as Luxembourg, Belgium, Greece, but
especially in France, although the principle is not explicitly mentioned in legisla-
tion or jurisprudence, the doctrine identifies and discovers it applied in one case
or another. In the UK, it would also seem that practitioners began to take it into
account.
The nature of the proportionality principle varies from one country to
another due to its formal origins (i n many countries, the only source is case law)
and due to the functions it performs311. According to the same author, the gradual
codification of the non -contentious administrative procedure in the European
countries could be envisaged. The example of the Du tch regulation of 1992 is
eloquent in this respect: "The adverse consequences of a decision for one or more
persons must not be disproportionate to the aims of the decision." The principle
of proportionality may also be provided for in the Constitution of a State (eg the
Portuguese Constitution of 1976) or, even if it is not explicitly provided, doctrine
and case -law can be considered unanimously as part of the notion of a state gov-
erned by the rule of law, art. 20 and 28 of the Basic Law of Germany. The fr e-
quent occurrence of the principle is also found in the contentious function, since
proportionality allows the judge to be guided in his appreciation of the exercise
of the discretionary power of the administration.
Analyzed in this comparative perspective , the principle of proportionality
demonstrates the functioning of the reception mechanisms in European law. It is
one of the principles that best illustrates the phenomenon of mutual inspiration of
the legal systems of states, belonging to the same Law Un ion that is currently
developing312.
At European Community level, the notion of proportionality has been
developed by the European Court of Justice, following a line already established
by German law313, to be enshrined in Community law and to enter the majori ty

311 Idem, p. 186.
312 Ibidem, p. 188 .
313 The German system has enshrined the principle of proportionality in the field of public order
since the nineteenth century. Thus, in Kreuzberg's judgment, the Supreme Court of Prussia first
raised the question of whether public action exceeded what was i mposed by the intended pur-
pose. In conclusion, the Court has asked the public authority for special approval whenever it
violates citizens' freedoms. More recently, the Federal Constitutional Court defined the prin-
ciple of proportionality in the following terms: "Administration intervention must be appro-
priate and necessary to achieve its objective. It can not impose excessive burdens on the indi-
vidual, and therefore must be reasonable in its effect on the individual " – Collection of Decisions
of the Federa l Constitutional Court , vol. 48, p. 402.

118 Cătălin -Silviu Săraru

of European administrative systems. One example is the European Court of Jus-
tice's decisions. Thus, it is clear from the judgments 15/83314 and 181/84315 that
'in order to determine whether a provision of Community law complies with the
principle of proport ionality, it is important to ascertain whether the means which
implement it are appropriate and necessary to attain the aim pursued. Further-
more, in Case 181/84, when a Community regulation establishes a distinction be-
tween a principal obligation, the fulf illment of which is necessary to achieve the
objective in question, and a secondary obligation of a primarily administrative
nature, it must comply with the principle of proportionality in dosing sanctions
for non -fulfillment of the two obligations. Decisi on 15/83 states that the principle
of proportionality is not violated by legislation providing for prior administrative
control of the conditions for the use of financial aid if there is a risk of fraud.
The principle is taken over by art. 5 (4) TEU statin g that "on the basis of
the principle of proportionality, Union action, in its content and form, does not
go beyond what is necessary to achieve the objectives of the Treaties". The ap-
plication of the principle is further detailed in Protocol No 2 to the T EU and the
TFUE for the application of the principles of subsidiarity and proportionality.
The Code of Good Administrative Behavior stipulates in Art. 6 that in
taking decisions, the official shall ensure that the measures taken are proportion-
ate to the ai m pursued. In particular, the official shall avoid limiting the rights of
citizens or imposing obligations on them if these limitations or tasks are not in a
reasonable relation to the intended action. In making decisions, the official will
respect the rig ht balance between the interests of private individuals and the in-
terest of the general public.
Another principle advocating "administration by law" is procedural
fairness . This means procedures that apply the law in a clear and impartial way,
to pay atten tion to social values, such as respect for people and the protection of
their dignity. A concrete application of procedural fairness is the principle that no
person may be deprived of his / her fundamental rights without being advised in
advance and heard in an appropriate manner. Thus, in judgment 234/84316, the

314 Arrêt de la Cour (deuxième chambre) du 17 mai 1984. Denkavit Nederland BV contre
Hoofdproduktschap voor Akkerbouwprodukten. Demande de décision préjudicielle: College
van Beroep voor het Bedrijfsleven – Pays -Bas. Marché agricole – Aides au lait écrémé en poudre
transformé en aliments pour animaux – Conditions de versement. Affaire 15/83. Recueil de ju-
risprudence 1984 page 02171 .
315 Arrêt de la Cour (cinquième chambre) du 24 septembre 1985. The Queen, ex parte E . D. & F.
Man (Sugar) Ltd contre Intervention Board for Agricultural Produce (IBAP). Demande de dé-
cision préjudicielle: High Court of Justice, Queen's Bench Division – Royaume -Uni. Restitu-
tions à l'exportation – Perte de caution – Principe de proportionna lité. Affaire 181/84. Recueil
de jurisprudence 1985 page 02889.
316 Arrêt de la Cour du 10 juillet 1986. Royaume de Belgique contre Commission des Communautés
européennes.
Aides d'État – Prise de participation dans le capital d'une entreprise – Droits de la défense. Af-
faire 234/84. Recueil de jurisprudence 1986 page 02263.

European Administrative Space 119

Court held that 'respect for the rights of the defense in all proceedings brought
against a person and liable to cause damage constitutes a fundamental principle
of Community law and must be ensured even in the absence of any rules concern-
ing procedure. That principle requires that the person against whom the Commis-
sion has commenced an administrative procedure must be able, during that pro-
cedure, to make known his point of view of the reality and rel evance of the facts
and circumstances relied on and of the documents held by the Commission the
support of his support when there is a violation of Community law. Where the
person concerned is unable to comment on documents containing information
covered b y business secrets, the Commission can not retain that information in
its decision. ' In this sense, Art. 41 of the EU Charter of Fundamental Rights –
Right to good administration (previously analyzed). The Code of Good Admin-
istrative Behavior provides (Ar ticle 16 – Right to be heard and to make state-
ments ) that where the rights or interests of citizens are at stake, the official shall
ensure that the rights of defense are respected at each stage of the procedure of
the decision. Where a decision has to be taken to affect its rights and interests,
any person has the right to submit written observations and, if necessary, to make
oral submissions before the decision is adopted.
Another element that supports confidence and predictability is the prin-
ciple of reasonable procedural term . Delays in taking decisions or finalizing
administrative procedures can cause frustration, injustice, or adversely affect both
public and private interests. Delays can result from some inappropriate resources
or the lack of a pos sible political settlement. Often this phenomenon is associated
with the inefficiency and incompetence of civil servants. Legal procedures can
help solve problems by setting clear time limits for completing each case. On the
other hand, a public service wi th a recruitment and advancement scheme based
on merit and requiring permanent training can reduce the incompetence within
the public administration, working in favor of true values. The Code of Good
Administrative Behavior stipulates in art. 17 that the c ivil servant must ensure
that the decision on each application or complaint addressed to the institution is
taken within a reasonable time -limit without delay and in any case no later than
two months after the date of receipt. The same rule applies to the reply to the
letters sent by citizens as well as to the replies to the administrative notes sent by
the official to his hierarchical superiors to ask them for instructions on the admin-
istrative decisions he has to take. If, in relation to the complexity of the problem
raised, the institution can not decide within that period, the official must inform
the author of the request as soon as possible. In this case, the applicant must be
notified of a final decision within the shortest possible time.
The value of professionalism and professional integrity in public ser-
vice influences the trust and predictability of public administration. The profes-
sional integrity of the civil service is based on impartiality and professional in-
dependence . The Code of Good Adminis trative Behavior states that the official
is impartial and independent (Article 8). He must refrain from any arbitrary action

120 Cătălin -Silviu Săraru

that affects citizens and from any preferential treatment. The conduct of an offi-
cial must never be guided by personal, family or national interests or by political
pressure. The official will not participate in the adoption of any decision in which
he or she, or any close family member, has a financial interest.
Impartiality refers to the absence of personal preferences. In the fiel d of
public administration, preference is to favor a particular aspect of a given situa-
tion, causing unjustified and unfair harm to the general interest or the rights of
other stakeholders. The loss of professional independence is manifested by the
loss of objectivity in thought and judgment, so that a case will no longer be ap-
preciated according to its real elements. Bribes, pressures, uncontrolled political
ambition, and a strong desire for promotion are the main causes of the loss of
professional indepen dence317.
It is worth pointing out that a public service whose recruitment and pro-
motion system is primarily based on political patronage or alliances of different
types is more exposed to the risk of disregarding professional integrity than a
system based o n merit.

Section 3. Openness and transparency

Openness suggests that the administration is willing to accept a viewpoint
from outside, while transparency means the degree of openness in the case of a
vote or a check318. These two features allow, on the one hand, that any citizen
involved in an administrative procedure be able to follow the course of the pro-
cedure and, on the other hand, that the administration can more easily accept and
accept an assessment from authorized institutions, or of civil society.
The Treaty on European Union (TEU) enshrines the notion of transpar-
ency in art. 1, par. 2, pointing out that "this Treaty marks a new stage in the pro-
cess of creating an ever closer union among the peoples of Europe, where deci-
sions are taken with full re spect for the principle of transparency and as close
as possible to citizens."
Article 11 (2) TEU provides that the institutions of the Union maintain
an open, transparent and constant dialogue with representative associations and
civil society. Article 15 (3) TfEU also provides that any citizen of the Union and
any natural or legal person residing or having its registered office in a Member
State has a right of access to the documents of the Union institutions, bodies,
offices and agencies, of the support on which these documents lie, subject to the
principles and conditions established by regulations by the European Parliament
and the Council.

317 See in this regard SIGMA Papers, no. 27, op. cit .
318 Idem .

European Administrative Space 121

Transparency of the decision -making process in the European institutions
is guaranteed by the provisions of Regula tion No 1049/2001 of the European
Parliament and of the Council of 30 May 2001 regarding public access to Euro-
pean Parliament, Council and Commission documents319. The preamble to this
Regulation states that transparency allows for better citizen participati on in deci-
sion-making, as well as greater assurance of the legitimacy, effectiveness and ac-
countability of the administration of citizens in a democratic system. Transpar-
ency contributes to strengthening the principles of democracy and respect for fun-
damen tal rights.
Beneficiaries of this Regulation are all citizens of the Union and all nat-
ural or legal persons residing or having their registered office in a Member State
(Article 2 (1)).
"Documents of the European Institutions" on which a right of access is
established shall be understood as "any content whatever their medium (written
on paper or stored in electronic form, recorded audio, visual or audiovisual) in
relation to a related field policies, activities and decisions falling within the com-
petence of the respective institution "(Article 3 of the Regulation).
In principle, all documents of the European institutions must be accessi-
ble to the public. The exceptions are strictly stipulated by art. 4 of the Regulation.
Thus, institutions may refuse access to a document if its disclosure could under-
mine protection:
a) the public interest as regards:
public security
defense and military affairs
international relations
the financial, monetary or economic policy of the Union or of a Member State
(b) pri vacy and integrity of the individual, in accordance with Union leg-
islation on the protection of personal data.
Also, under Article 4 (2) of the Regulation, the EU institutions may re-
fuse access to a document if its disclosure could undermine protection:

the commercial interests of a particular natural or legal person, including
the protection of intellectual property rights

court procedures and legal advice

the objectives of inspection, investigation and audit activities,
unless an o verriding public interest justifies the disclosure of the document con-
cerned.
A Member State may require an EU institution not to disclose a document
originating from that State without its prior consent (Article 4 (5) of the Regula-
tion).

319 Published in J.O. L154/31.5.2001.

122 Cătălin -Silviu Săraru

These exceptions to free access to documents apply only during the pe-
riod during which protection is justified in the light of the content of the docu-
ment. Exceptions may apply during a maximum period of thirty years. In the case
of documents to which public access is refu sed on grounds of protection of pri-
vacy or commercial interests, exceptions to the prohibition may apply, if neces-
sary, beyond that period (Article 4 (7) of the Regulation).
Requests for access to documents shall be made in writing, including by
electronic means, in one of the lang uages of the Member States and in sufficient
time to enable the institution to identify the document. The applicant is not re-
quired to justify his request (Article 6 (1) of the Regulation). If the application is
not sufficiently precise, the institution will not reject the application but will in-
vite the applicant for clarification (Article 6 (2) of the Regulation).
Requests for access to documents must be promptly dealt with by the
institutions to which they are addressed. Within 15 business days from th e date
of filing the application, the institution must grant access to the documents re-
quested and provide these documents. In the case of a total or partial refusal, the
institution must provide the applicant with a reasoned written reply and inform
him / her of his / her right to file a confirmatory application (Article 7 (1) of the
Regulation).
European regulation establishes in favor of the applicant the possibility
of recourse to graceful appeal. Thus, in the event of total or partial refusal or
absenc e of the institution's response, the applicant may address, within 15 work-
ing days of receipt of the institution's response or from the date on which the
institution was required to respond, in the in the case of the silence of the admin-
istration, a confir matory application for the revision of the position of the insti-
tution (Article 7 (2) and (4) of the Regulation). Graceful appeal is a mandatory
administrative procedure for recourse to justice.
The confirmatory request must be promptly dealt with. Within 15 work-
ing days of filing the application, the institution must either grant access to the
requested documents and provide these documents or communicate in writing the
grounds for its total or partial refusal. If the access is totally or partially refused ,
the institution will inform the applicant of the possibility of bringing a judicial
appeal against the institution and / or submit a complaint to the European Om-
budsman (Article 8 (1) of the Regulation). Also, the absence of the institution's
response wi thin the legal timeframe is considered as a negative response and em-
powers the applicant to bring a legal appeal against the institution and / or to
submit a complaint to the European Ombudsman (Article 8 (3)).
In order to enable citizens to make effective use of the rights conferred
by the Regulation, each European institution is obliged to keep a register of doc-
uments accessible to the public. (Article 11 (1) of the Regulation).
Each institution is required to publish an annual report stating the number
of refusals of access to documents opposed by the institution and the reasons for
such denials (Article 17 (1) of the Regulation).

European Administrative Space 123

As a general rule, public administration policy should be one of openness and
transparency. Only cases of an exceptional natur e, relating to European and na-
tional security or similar issues, should be kept secret and confidential. Personal
data must also be protected by third parties. Officials working with citizens' per-
sonal data must respect the privacy and integrity of individ uals, as laid down in
Regulation (EC) No 45/2001 of the European Parliament and of the Council of
18 December 2000 on the protection of individuals with regard to the processing
of personal data by the Community institutions and bodies and on the free move-
ment of such data320. Officials should, in particular, avoid treating personal data
for non -legitimate purposes or transmitting it to unauthorized third parties (Code
of Good Administrative Behavior, Article 21).
At a national level, it is often noted that a uthorities tend to declare some
documents more confidential than they are. Thus, with the exception of Sweden,
which has been open and transparent since the end of the eighteenth century321,
the traditional standard of administration was discretion. It is on ly from the 1960s
that the open style of governance has begun to develop in some democracies,
today being considered an essential standard for public administration. Before the
1960s, the only application of the principle of openness in western European de-
mocracies was, on the one hand, the principle that the laws entered into force only
after they had been published in an official bulletin and, on the other hand, that
administrative decisions were applicable only after their communication and ac-
ceptance by those concerned.
Openness and transparency can lead to a limitation of bad administration
and corruption. They are also necessary to respect individual rights insofar as they
provide the necessary reasons for administrative decisions and help stakeholders
exercise their right to seek redress.
These principles find their application in European legislation on public
administration. Administrative actions must therefore be motivated and carried
out by a competent authority. Public registers must be made acce ssible to the
general public, with EU institutions being obliged to keep a register of entries and
exits of documents and measures to be taken, in accordance with Art. 24 of the
Code of Good Administrative Behavior . The agents of the authority must make
their identity public, in the reply or acknowledgment of receipt of a request, the
name and telephone number of the official dealing with the file and the service to
which he belongs (Article 14 (2) of Code of Good Administrative Behavior ). Civil
servants mu st accept certain private -sector gain restrictions, which must be an-
nounced and authorized before they occur.
An important element for openness and transparency in public admin-
istration is the obligation of public authorities to make known the reasons for

320 OJ L 8/1, 12.1.2001.
321 See in this regard SIGMA Papers no. 27, op. cit.

124 Cătălin -Silviu Săraru

their decisions . The European Court of Justice has repeatedly shown that deci-
sions taken by officials in the European institutions must be motivated in a suffi-
cient manner322. The reasoning must provide the essential elements of the admin-
istrative procedure applied and be sufficiently justified to allow the interested
party to appeal against the final decision.
Motivation must be in fact and in law. "Reasons" should be understood
as both the legal provisions that entitle the institutions to take action and th e rea-
sons which motivate the institutions to issue the act in question323. The mention
of the legal provision is necessary given that the Union's institutions can only
exercise those powers explicitly provided for in the Treaty.
Motivation is very important in cases where a stakeholder request is re-
jected. In this case, the reasoning must clearly show why the arguments put for-
ward by the requesting party could not be accepted.
If a regulation is not sufficiently "reasoned", this deficiency may be the
basis fo r the annulment of the act in question, and it is a breach of an important
procedural requirement that may be invoked in an action for review of the law-
fulness of that legislation before the European Court of Justice. The Court may
and must object, on its own initiative, to any lack of motivation324.
By sufficient reasoning of the act issued by an EU institution, it is al-
lowed for the parties to defend their rights, the European Court of Justice to ex-
ercise its control function and the Member States and all i nterested citizens to
know the conditions under which the institution has applied the Treaty325.
In France, Italy and in other European countries, the error of reasoning,
classified as defective in administrative acts, may be a source of redress for the
excess of power before the administrative courts.

Section 4. Tort liability of the European Union administration

In general, responsibility implies that a person or authority must explain
and justify its own actions. In administrative law, this would mean th at any ad-
ministrative body must respond to its acts before another administrative, legisla-
tive or legal authority. This can be accomplished through several mechanisms:
courts of justice, appeal to higher administrative bodies, public opinion polling,

322 see Decision C-269/90, Technische Universität München -Mitte, Rec. p. I 5469 of 21 november
1991; Case T -167/94 [2002] ECR II -2589 of 18 September 1995 – Nölle v Council and
Commission; Case C -221/998, ECR I -8255 of 10 December 1998 – Schröder et Thaman v
Commission.
323 Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002 , p. 35.
324 Idem, p. 36. See also ECJ Decision 158/80 Rewe v Hauptzollamt Kiel, where Regulation No
3023/77 was declared null as it did not include the statement of the grounds on which it was
based.
325 Ibidem, p. 35. See also ECJ Judgment no. 24/62 Germany v Commission

European Administrative Space 125

press , control by parliamentary committees or other special commissions. The
purpose of control is to determine whether public services perform their functions
effectively, efficiently and within the time limits set, and whether the principles
and procedures la id down by special or general regulations are respected. Liabil-
ity is a tool that shows whether principles such as respect for law, openness, trans-
parency, impartiality and equality before the law are respected. At the same time,
responsibility is essentia l for strengthening values such as efficiency, trust or pre-
dictability in public administration.
With regard to non -contractual liability, the Union is obliged, in accord-
ance with the general principles common to the laws of the Member States, to
make go od any damage caused by its institutions or by its servants in the perfor-
mance of their duties (Article 340 TFEU) .
In disputes relating to repairs for damages resulting from non -contractual
obligations of the Community, jurisdiction lies with the European Court of Jus-
tice326. Since the creation of the Communities, the EEC Treaty (art. 178 in con-
junction with art. 215 (2)) gave the Court of Justice the power to decide on the
non-contractual obligations of the Union. In the case of non -contractual obliga-
tions, the Community shall, in accordance with the general principles common to
the laws of the Member States, make good any damage caused by its institutions
or by its servants in the performance of their duties.
The non -contractual liability of the Union instit utions presupposes that
the applicant proves the unlawfulness of the conduct alleged against that institu-
tion, the existence of the damage and the existence of a causal link between that
conduct and the damage alleged327. On the other hand, the unlawful natu re of an
act does not automatically render the Union responsible for providing damages
repairs. Thus, in the case of legislation involving economic policy measures, the
Union assumes no responsibility for non -contractual obligations only in the case
of a s ufficiently flagrant violation of a higher rule of law to ensure the protection
of the injured party328.

326 for details see Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002, p. 156 -158.
327 arrêts de la Cour du 29 septembre 1982, Oleifici Mediterranei/CEE, 26/81, Rec. p. 3057 , point
16, et du Tribunal du 13 décembre 1995, Exporteurs în Levende Varkens e.a./Commission, T –
481/93 et T -484/93, Rec. p. II -2941, point 80, du 11 juillet 1996, International Procurement
Services/Commission, T -175/94, Rec. p. II -729, point 44, du 16 oct obre 1996, Efisol/Commis-
sion, T -336/94, Rec. p. II -1343, point 30, et du 11 juillet 1997, Oleifici Italiani/ Commission,
T-267/94, Rec. p. II -1239, point 20
328 Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002 , p. 157. It is cited here in the
ECJ case -law common cases 197/81 Ludwigshafener Walzmühle v Council and Commission.

126 Cătălin -Silviu Săraru

Decision no. T -113/96329 states that the omissions of the Community in-
stitutions are not capable of incurring the non -contractual liability of the Com-
munit y only in so far as the institutions have breached a legal obligation resulting
from a Community provision. The same decision states that the non -contractual
liability of the Community for damage caused either by normative acts adopted
by its institutions or by erroneous omissions to adopt certain acts may be com-
mitted only in the presence of a violation of a superior rule of law which protects
them on individuals. In addition, if an institution has adopted or omitted to enact
a normative act under its broa d discretionary power, Community liability will
only be committed if the violation is manifest and serious, clearly violating the
limits of the exercise of its own powers.
If individuals and legal entities are injured by acts issued by Member
States under EU law, two situations can be distinguished. Firstly, where the re-
quest for repairs concerns the non -compliance of the national implementing
measures with the Community rules, the European Court of Justice has no juris-
diction. In this case, Member States m ay be sued in the national courts for wrong-
ful application of EU law330. Secondly, if the damage caused by national imple-
menting measures originates in EU legislation, the Union's liability can be deter-
mined by the European Court of Justice on the basis of E U law331.
Remedial actions are subject to a temporary limit of five years332. If the
Court orders damages to natural and legal persons injured by an act of EU instru-
ments deemed by the Court to be illegal, the act becomes virtually inapplicable333.
The princip le of tort liability of the public administration is enshrined in
the legislation of all the states of the European Union. Furthermore, political lead-
ership is subject to all the Ministerial Responsibility Law. Interestingly, the pro-
vision in the Greek Con stitution, where in the final part of art. 85 states that "in
any case a written or verbal order of the President of the Republic can not exon-
erate ministers and state secretaries from their responsibility". Also in this coun-
try, under the Ministerial Resp onsibility Law, government members and state
secretaries are jointly responsible for the general government policy, but each is

329 Arrêt du Tribunal de première instance (cinquième chambre) du 29 janvier 1998. Edouard Du-
bois et Fils SA contre Conseil de l'Union européenne et Commission des Communauté s euro-
péennes. Responsabilité non contractuelle – Acte unique européen – Commissionnaire en
douane. Affaire T -113/96. Recueil de jurisprudence 1998 page II -00125 .
330Pierre Mathijsen, op. cit. (Compediu de drept european ), 2002 , p. 158 which cites Case 120/ 87
Asteris v Hellenic Republic and Commission.
331 Idem, p. 158. See also Case 126/76 Dietz v. Commission.
332 Protocol on the Statute of the Court, Art. 43 and Case 5/81 (Birra Wűhrer v. Council and Com-
mission).
333 Pierre Mathijsen, op. cit. (Compediu de drep t european ), 2002 , p. 158.

European Administrative Space 127

responsible for the actions and omissions committed in the exercise of its com-
petence334. The Portuguese Constitution regulates th e civil liability of civil serv-
ants (Article 271) and establishes joint civil liability of the State and other public
institutions with the owners of their state bodies, officials or agents for their ac-
tions, resulting in violation of rights, freedoms and guarantees or damages for
others (Article 22).

Section 5. Efficiency and effectiveness

These are two aspects related mainly to public service management. And
within the broader European Union, he maintains the maximum validity of econ-
omist Richard Farmer who, in 1988, stressed that "management is one of the key
factors explaining why a country is rich or poor." 335 In this area, an ambitious EU
project was the adoption in March 2000 of the Lisbon Strategy aiming to make
the Union economy the most dynamic an d competitive economy in the world by
2010. The targets set out in this strategy were always the subject of intense Euro-
pean debates. Romano Prodi at the end of his term as President of the European
Commission talked about a failure of the Strategy by stat ing amongst his main
factors stubbornness of the EU Member States to use their veto against the eco-
nomic initiatives proposed by the European Commission. The failure was also
due to the fact that the Strategy contained a large number of areas ranging from
research and education to the environment and employment policy, some of
which were impossible to achieve within the proposed deadline.
The commission led by José Manuel Barroso wanted to streamline and
relaunch this strategy by reducing targets in three m ain directions and a few other
side-ends. The foreground refers to:
– creating more jobs and improving the quality of working conditions;
– increasing knowledge and innovation
– ensuring that EU space is attractive to business.
As far as the secondary objectives are concerned, they mainly concern
the development of greater labor market flexibility, increased investment in re-
search and modernization of social protection. To increase efficiency, Brussels
wants each Member State to set up an action plan that contains firm commit-
ments336.

334 See also Victor Duculescu, Constanța Călinoiu, Georgeta Duculescu, Drept constituțional com-
parat , 2nd edition, vol. I, Lumina Lex, Bucharest, 1999 , p. 464.
335 Richard Farmer, Advances in International Comparative Management , vol. III, 1988.
336 See also Lisbon Action Plan incorporating EU Lisbon Programme and recommendations for
actions to Member States for inclusion in their national Lisbon Programmes – SEC(2005)192,
Bruxelles, 4 février 2005

128 Cătălin -Silviu Săraru

In 2010, the European Commission published the Communication "Eu-
rope 2020. A European Strategy for Smart, Green and Inclusive Growth"337 pro-
posing measures to restructure the European Union's economy after t he economic
crisis.
Europe 2020 proposes three mutually supportive priorities:
– smart growth: developing an economy based on knowledge and inno-
vation;
– sustainable growth: promoting a more efficient economy from the point
of view of resource use, more en vironmentally friendly and more competitive;
– inclusive growth: promoting a high -employment economy labor force,
ensuring social and territorial cohesion.
The EU has to define the direction it wants to evolve by 2020. To this
end, the Commission proposes the following main EU targets:
– 75% of the population aged between 20 and 64 should have a seat
the work;
– 3% of EU GDP should be invested in research and development;
– meeting the "20/20/20" climate / energy targets to reduce greenhouse
gas emissions b y 20% by 2020 compared to 1990 levels (and to reach 20% of
energy from sources sources);
– the early school drop -out rate should be reduced to below 10% and at
least 40% of the young generation should have higher education;
– the number of people at risk o f poverty should be reduced by 20 million.
Effectiveness refers to the ratio between the result obtained and the ob-
jective to be achieved. This concept involves, on the one hand, the prior definition
of an objective and, on the other hand, t he measurement (or at least the estima-
tion) of the result obtained338. Effectiveness is to ensure that public administration
performance is headed towards the proposed goals, addressing public issues le-
gally. It is necessary to analyze and evaluate permanent public policies to ensure
that they are properly implemented by the public administration and civil serv-
ants.
Efficiency is the ratio between the output and the means employed (the
ratio between output and input). Today, due to the fiscal c onstraints existing at
national and European level, the effective and efficient performance of the ad-
ministration in providing public services to society is increasingly in the attention
of the authorities and public opinion. Efficiency as managerial value may some-
times conflict with legal restrictions. Public managers often see legal procedures
as enemies of efficiency. Everywhere, legislation is a conservative element, and
managerial innovations tend to outgrow. The conflict also generates legal institu-
tions and solutions, so it can be said that management is today the "engine of the

337 The communication can be found here: http://eurlex.europa.eu/LexUriServ/LexUri-
Serv.do?uri=COM:2010: 2020:FIN:RO:PDF (last consulted on the 15th of July 2017).
338 See in this regard Lucica Matei, Management public , Economic Publishing House, Bucharest,
2001, p. 195.

European Administrative Space 129

remodeling of law in administration."339 Institutional elements include the pro-
cess of transferring productive activities to the private sector through contractual
procedures (a dministrative or commercial contracts), while public administration
retains the role of a factor designing these contracts and then monitoring them.
The European Court of Auditors has an important role in controlling
the financial managemen t of the Union institutions. The object of this control is
to verify the legality and the principles of economy, efficiency and effectiveness
in managing the organization's money resources and how the assets of the EU
institutions are managed. Through its controls, the European Court of Contours
highlights and draws the attention of administrators and competent bodies to the
gaps, inconsistencies and frauds found or potential, and signals the ambiguities
or shortcomings of the applicable control provisions that could favor such nega-
tive phenomena340.
The legislation and jurisprudence of the institutions and structures of the
European Union provide for the need for an efficient administration, especially
in the light of EU directives and regulati ons. Thus, national administrations have
to comply with the deadlines set in the directives for taking concrete measures
for their implementation, thus requiring a certain amount of efficiency at the level
of the national administration341. Member States are therefore obliged to make
changes in their internal organization, administrative structures and decision –
making procedures, in order to effectively and effectively support European leg-
islation and to ensure effective cooperation between the EC institution s.
In Western European constitutions of a more recent date, such as that
of Spain in 1978, efficiency and effectiveness are high on constitutional princi-
ples, along with other classical principles such as law enforcement, transparency
and i mpartiality. Legislation on public administration often refers to economy,
efficiency and effectiveness ("the three E") and law enforcement, as principles to
govern public administration and civil servants.

339 Ioan Alexandru, Dreptul ș i managementul. Dihotomie sau complementaritate. Impactul
informatizării , All Beck, Bucharest, 2004, p. 43 and next.
340 OCDE, Efectele aderării la Uniunea Europeană , Economic Publishing House, Bucharest, 2000,
Part I – „Proces bugetar și control financiar”.
341 see the European Court of Justice, Case 86/81, Commission v. Belgium (1982), ECR. 153 – by
virtue of Art. 15 of Directive 78/176 on waste from the titanium dioxide industry, Member
States had to implement the necessary measures to comply within 12 month s of notification.

Chapter VI
Integration of Romanian au thorities and institutions into
the European Union's system of values

Today, with all the aspirations of the unity of the old continent, reality
shows us that it is very difficult to speak in Europe about a mode or model of
public administration. A Euro pean model of public administration is now at the
ideal stage. There is no type of administration that we can refer to as a standard.
Over time, the Member States of the European Union, despite having
different legal traditions and different systems of gov ernance, have developed a
common body of doctrine and share the same principles of administrative law
and good practice standards as well as the need for unitary application and effec-
tive EU law. Sharing the same principles and standards has led to some co nver-
gence between national administrations. This has been described as the "Euro-
pean Administrative Space".
The integration of Romania into an administrative conv ergence area of
the European Union is difficult to achieve also from the perspective of the fact
that there is no European acquis that includes the standards set for a universal
public administration. The key elements of good governance are set around th e
principles generated by the work of the European Ombudsman and the European
Court of Justice. Finally, the level at which the whole administrative set of Ro-
mania complies with the commonly accepted standards, built on the established
legal administrative principles, is of prime importance for the integration in the
European Union system of values
In order to integrate into the European Administrative Space, Romania
needs to undertake a structural and functional reform of the public administration
in order to increase the ease, efficiency and consistency of the administrative act,
to reduce bureaucracy, to eliminate dysfunctions and overlapping of competen-
cies and to increase the degree of compatibility with other administrations States
of the European Unio n. The core institutional values at European level (function-
ality, transparency, predictability, accountability, adaptability, efficiency, subsid-
iarity) must also be implemented within the Romanian public administration at
all levels and must be protecte d by the public authorities empowered by the leg-
islation in force to monitor and to control this process of adaptation to the require-
ments of the European Administrative Space.
We appreciate that in a future Administrative Code of Romania, the
guidelines o f the administrative reform should be laid out in the form of basic
principles among which are the principles that outline the European Administra-
tive Space.

European Administrative Space 131

Romania has the chance that by means of a coherent administrative re-
form aimed at both the legislative modification and especially the change of the
mentality of the participants in the administrative relations, it will become a
model to be followed within the European Union. Today we find that, as in Emi-
nescu's time, "all living conditions need to be improved, and for this there needs
to be an administration enlightened in truth, untiring and honest." 342
In today's Romania, with all the Western aspirations, one can talk about
an inadequacy of the administrative apparatus in its social enviro nment (the gap
between administration and society), which generates a legitimacy, identity and
effectiveness crisis in the administration.
The crisis of administration can be defined as an accentuated manifesta-
tion of some inconsistencies and contradiction s in its functioning, phenomena
that generate a period of tension and turbulence accompanied by attempts – most
often unsuccessful – to eliminate them343.
The polemic on legitimacy is also specific to the transition because any
intention of administrative change in a democratic state involves pros and cons.
The major problem lies in the government's courage to assume responsibility not
only for the development of an administrative reform strategy but also for its im-
plementation.
Against this background, pub lic administration reform depends largely
on five aspects344:

external pressure

internal dissatisfaction

the quality of the reform strategy

the reform management mechanism

information feedback and evaluation
Public administration has a certain autonomy, it must be perceived as
Emine scu said as his own personality that develops just like a human body having
a body and a soul. The body of the state is the land, the earth; – the soul is the
people, its organic consciousness is the state in the strict sense of the word, the
abstraction f rom the country and the people – the state as such345. It is not possible
to apply rupture strategies to this administration, because they would accentuate
the crisis. Taking over evolved forms from outside would create a rupture with
the Romanian background . So any reform strategy must start from a Romanian
reality that it will try to change gradually. Also, "you can not build solidly if you

342 Mihai Eminescu, article „ Pe când se discuta… ” – „Timpul” , 10 July 1880, Opere XI.
343 See in this regard Ioan Alexandru, Criza administrației – teorii și realități, All Beck, Bucharest,
2001, p. 108.
344 SIGMA Papers, nr. 23 – Preparing Pu blic Administration for the European Administrative
Space , OECD, Paris, 1998.
345 Mihai Eminescu, article [ Personalitatea statului și organismele sale ] – manuscript 2257, Opere
XV, p.1151 -1159 .

132 Cătălin -Silviu Săraru

do not have a foundation, a strong foundation and especially if you do not use the
knowledge accumulated over the year s by specialists in various fields." 346
In the process of integration into the EU's system of values, public ad-
ministration has a dual role: that of an instrument or interface through which fi-
nancial assistance programs, EU law enforcement and education are carried out
in the spirit of "unity in diversity" a united Europe, as well as an autonomous
entity with means of action and personnel. Under the first aspect, it is often spo-
ken of about increasing the capacity of public administration to respond to the
ever-diversified demands of integration. Under the second aspect, the effective-
ness and consistency of the administrative act and the democratization of the pub-
lic service are being discussed.
As an expression of the rule of law, everywhere in the European Union,
the purpose of national administrations is the same: serving the best interests of
citizens. But, all over the Union, do citizens have the same interests in dealing
with the administration? We believe that although the citizens of each country
exhib it conservative individualities due largely to the historical reflex, there is
today a philosophy of human rights (humanist) that necessarily implies the de-
mocratization of the administration and its proximity to the citizen.
Many times, in Romania, there was a misuse of legislative abundance
(inflation), without first establishing clearly the principles that will form the basis
of the construction of the new system of organization and administrative action.
Or, to build a house, we must first put the found ation and the pillars of resistance
in order for the structure to be durable. The principles of the European Adminis-
trative Space are the pillars of support for the European building.

346D. Bujor -Buhociu, Timpul , no. 2/2004, p. 10.

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