Parts III - IV

Dumitru-Daniel ŞERBAN, Ph.D. Candidate, Dana APOSTOL TOFAN, Ph.D. in Law, Professor, Unconstitutionnality of Romanian legislation on public acquisitions
Public procurement in Romania is regulated mainly by the Government Emergency Ordinance no. 34/2006 regarding the award of the public procurement contracts, public works concession contracts and services concession contracts, Law no. 337/2006 approving the ordinance and by their subsequent acts of amendment.

The ordinance was adopted by the Romanian Government on April 19, 2006, and entered into force two months later, on June 30, 2006. The Law no. 337/2006 was adopted by the Romanian Parliament as an ordinary law, by the majority vote of the members present in each of the Parliament Chambers.

According to article 115 paragraph (4) and (5) final thesis of the Constitution, the Government can only adopt emergency ordinances in exceptional cases, the regulation of which cannot be postponed, and any emergency ordinance containing norms of the same kind as the organic law must be approved by a majority vote of the members of each Chamber. In the actual situation of the above mentioned ordinance and law, these normative acts infringe the constitutional provisions, as no emergency was needed for the ordinance and, separately, the approval vote on the law was irregular (as per ordinary laws, although the ordinance contains several organic norms).

In this line, recently, one judge within the Romanian Constitutional Court stated that the primary legislation on public procurement breaches the Constitution because of the inappropriate manner the Law no. 337/2006 was adopted.

The present study tends to identify and explain the conditions that invalidate the primary legislation on public procurement, in the light or the constitutional provisions.

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