Approval of the Administrative Code - Modifications to the legal regime of public and private property held by the state and by the administrative-territorial units

Approval of the Administrative Code - Modifications to the legal regime of public and private property held by the state and by the administrative-territorial units

Larisa-Ioana Popoviciu, Lawyer Coordinator and Maria Nitulescu, Senior Lawyer Reff & Associates

On 5 July 2019 was published in the Official Gazette Government Emergency Ordinance no. 57/2019 on the Administrative Code. The normative act entered into force on the same day, following a series of expressly indicated provisions, to enter into force at a later date. Although the Administrative Code contains mainly provisions on the organization and functioning of public authorities, important changes have been made regarding the legal regime of public and private property owned by the Romanian state or by the administrative-territorial units ("UAT").

Normative acts containing relevant provisions on public / private property have been abolished. We expressly list  the Emergency Ordinance no. 54/2006 on the regime of concession contracts for public property, Public Administration Law no. 215/2001 and Law no. 213/1998 on the public property (except for the provisions of article 6). The regime of concession of public property as regulated by the Administrative Code brings a number of novelties to the old regulation.

Regulating the procedure for the sale of private property owned by the State / ATU.
Although the new regulation does not bring about changes of substance to the principles of such sales (for example, sales should be made through a public auction and justifying the opportunity of such an operation), additional conditions are set.

For example, it is expressly provided that the minimum selling price will be the highest of (i) the market price in the valuation report drawn up by authorized and selected valuers by public auction and (ii) the inventory value of the property.

The legal responsibility for the correctness of the price setting included in the evaluation report rests solely with the assessor. The approval of the sale of the private property owned by the ATU will be made by the decision of the local / county council adopted by a qualified majority of two thirds of the number of local / county councilors.

Exercise of state ownership / ATU. The Administrative Code establishes a general framework for the regulation of the ways of exercising the public or private property ownership, held by the State / ATU. We will find these ways, common to the public and private domains, giving in administration, concessioning, renting and putting into free use. The rules on the exercise of the public property right shall apply accordingly to the giving of property, the concession, the rental and the free use of the private property.

In this context, however, we point out that the particular provisions included in Law no. 50/1991 on the authorization of construction works regulating the possibility of concession of land for construction (owned by the State or ATU) do not appear to be expressly abrogated by the Administrative Code.

New provisions on justifying the end of public use: According to the Administrative Code (and in line with the previous regulation provided by Law 213/1998), the transfer of a good from the public domain to the private domain may be approved to the extent that it is justified to cease the use or the public interest. Please note that the sanction applicable in case of non-compliance is absolute nullity. Increased attention should be paid to tools to document the well-being of ending the use / public interest.

Acceptance of donations and links by the state / ATU. Can be the subject of donations, including goods in respect of which there are overdue taxes and duties. The nature and / or value of the donated goods will be essential in determining the competent authority to accept the donation.

New provisions on the inventory of public or private property of the state / administrative-territorial units. The provisions of the Administrative Code are much more detailed as regards the inventory of goods held by the State or the ATU, and additional conditions are imposed in order to carry out such a procedure. Please note that failure to comply with these conditions may result in the sanction of absolute nullity of the inventory approval decision.