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Source: European Journal of Law and Public Administration

European Journal of Law and Public Administration

Location: Romania
Author(s): Liana-Teodora PASCARIU
Title: THE OPPORTUNITY OF A EUROPEAN ADMINISTRATIVE CONTRACT LAW
THE OPPORTUNITY OF A EUROPEAN ADMINISTRATIVE CONTRACT LAW
Issue: 1/2016
Citation Liana-Teodora PASCARIU. "THE OPPORTUNITY OF A EUROPEAN ADMINISTRATIVE
style: CONTRACT LAW". European Journal of Law and Public Administration 1:105-113.

https://www.ceeol.com/search/article-detail?id=426563
CEEOL copyright 2018

E-ISSN: 2360 – 6754; ISSN-L: 2360 – 6754

European Journal of Law and Public

Administration
2016, Volume 3, Issue 1, pp.105-113

THE OPPORTUNITY OF A EUROPEAN

ADMINISTRATIVE CONTRACT LAW

Liana-Teodora PASCARIU

Covered in:

CEEOL, Ideas RePeC, EconPapers,

SocioNet

Published by:

Lumen Publishing House

On behalf of:

Stefan cel Mare University from Suceava, Faculty of Economics and

Public Administration, Department of Law and Public
Administration

How to cite: Pascariu, L. T. (2016). The Opportunity of a European Administrative Contract Law.
European Journal of Law and Public Administration, 3(1), 105-113.
CEEOL copyright 2018
CEEOL copyright 2018

THE OPPORTUNITY OF A EUROPEAN

ADMINISTRATIVE CONTRACT LAW

Liana-Teodora PASCARIU1

Abstract
There was a tendency in the past few years, particularly in Europe, to
harmonize and conceptualize in a common way the rules referring to the coming out,
alteration, execution or termination of contracts, which could ultimately lead to the
emergence of a new branch of European Union law, the contract law. This vision
has gone from finding a number of three parameters2, considered essential that
determined the current evolution relating to contracts:
• socio-economic development of society and its legal framework;
• globalization, internationalization of judicial obligational relations;
• structural change of regulating the juridical obligational contractual
bindings.
The issue here is to determine whether these European interests have any
implication on the matter of administrative contracts, on the possibility of a European
administrative contract law and whether specialists have only addressed the field of
civil contracts.

Keywords:
the contract law; common rules; administrative contract law.

JEL Classification: K12, K23

1Lecturer PhD, Stefan cel Mare University from Suceava, liap@seap.usv.ro.

2Vasile Pătulea, Gheorghe Stancu, Contract law, Editura C. H. Beck, Bucharest, 2008,
pag. 452.

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Liana-Teodora PASCARIU

I. INTRODUCTION

Among many initiatives in the field I will mention some more

substantial starting with activity developed by the European Contract
Law Commission, chaired by Professor Ole Lando, due to the need to
draft a Community law convention project applicable to contractual and
non-contractual obligations3. More recently Giuseppe Gandolfi has
proposed to start from the Italian Civil Code in the approach of coding
contracts4, the project named „Common Care of European Private
Law”, initiated by Mauro Bussani, Ugo Mattei and the group studies
have followed to draw a scheme on which to engage, at European level,
debates about the appropriateness of a European civil code5.
Certain that the actions at Community level to harmonize
national systems were made cautiously by means of directives, inspired
by a logic of current market dynamics6, pondering on priority areas such
as consumer protection7, competition, electronic commerce, faulty
products. It has also noted a blurring of the effects of the directive in
relation to the regulation, most probably starting from the need to
respect the principle of legal certainty, the directive approaching the
regulation by level of detail and specificity.
Involvement of the European institutions in contract law
codification culminated with the adoption by the European Parliament
of the resolution of 3 September 2008 on the common frame of
reference for European contract law8 which suggests that if the future
shape of the reference framework is that of an optional instrument, it
will be limited to those areas where the Community legislator has been
active or is likely to be active in the near future or are closely related to
contract law, and that any optional instrument should have the basic

3 The project was discussed at the International Conference on Copenhagen 1974.

4 Giuseppe Gandolfi, Pour un code européen des contrats, in Revue trimestrielle de droit civil,
1992, pag. 707, apud Vasile Pătulea, Gheorghe Stancu, op. cit., pag. 376.
5 Mauro Bussani, Ugo Mattei, Le fonds commun de droit privé européen, in Revue trimestrielle

de droit comparé, apud Vasile Pătulea, Gheorghe Stancu, op. cit., pag. 377.
6 Vasile Pătulea, Gheorghe Stancu, op. cit., pag. 368.
7 Seven directives were adopted on consumer protection in matters of technique

contractual incidence between the years 1985-1999 and 5 general directions on

harmonization of laws contract.
8 Published in Romanian Official Journal of the European Union of 4 December 2009

on http://eur-lex.europa.eu.

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The Opportunity of a European Administrative Contract Law

framework common; it also believes that, in all cases, it should ensure

that the selection procedure will not jeopardize the overall coherence of
the optional instrument and, regardless of the future shape of the
common reference framework of contracts there should be instituted
measures to ensure regular updating of contracts in order to respond to
changes and national developments in contract law.

II. AN EUROPEAN ADMINISTRATIVE CONTRACT LAW

As shown in the abstract, the issue of interest here is to

determine whether these European concerns have any influence on the
matter of administrative contract, if we can talk about an European
administrative contract law or whether specialists have particularly addressed
to the field of civil contracts.
Sure that many of these current trends listed above are currently
only a theoretical support; however, the matter studied in the paper,
although law specialists do not necessarily advocate an European common
corpus of administrative contracts - so difficult in many aspects9 - we can
speak of common rules and similar principles. I appreciate that it is
possible a concerted action of European institutions in order to
harmonize the administrative contract law and argue for it by the fact
that it is the area par excellence of action of Community legislation on
public procurement where the directives issued led to harmonization of
national law of the Member States of the European Union.
Internal normative acts, reported especially at the conclusion of
the administrative contract or legal status thereof, were adopted due to a
lack of general regulations of administrative contract in Romania and
were based exactly on Community regulations, whose transposition is
binding on Member States, such as the case of GEO no. 34/2006 (now
Law no. 98/2016 on public procurement) that has transposed the
Directive 2004/18 / EC on the coordination of procedures for the
award of public work contracts, supplies and services, Directive 2004/17
/ EC on coordinating the procurement procedures applied by entities
operating in the water, energy, transport and postal services 10, Directive

9 One of the main problems of harmonization as well as in private contract law, is to

find a bridge between the two great systems of law, the Roman-Germanic and the
common law.
10 Published in the Official Journal of the European Union no. L 134 of 30 April 2004.

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1989/665 / EEC on the coordination of laws, regulations and

administrative provisions relating to the application of review procedures
concerning the award of supply contracts and public works contracts11
and Directive 1992/13 / EEC on the coordination of laws, regulations
and administrative provisions relating to the application of Community
rules on the procurement procedures of entities operating in the water,
energy, transport and telecommunications12.
I think that a European contract law in this matter should also
lead to rethinking traditional applicable principles, not by denying the
classical existing principles, but by adapting and adopting new principles
determined by socio-economic changes of the contemporary world13.
Besides the classic principles derived from the creative process of law
achieved by the European Court of Justice, which has started from the
Algera case14 and has developed a rich jurisprudence15 until now in the
centre of which there are: the principle of proportionality, the principle of
administration by law, the legal certainty, the legitimate requests protection, the non-
discrimination, the right to a hearing in the decision-making procedures of
administration, the equal access to administrative courts, the non-contractual
responsibility of the administration, etc., new principles have outlined, at least
at the level of the theorization of law.
The above statement is based on possible actions to be taken in
order to establish the European contract law, actions carried out in two
ways: on the one hand, the savant way of doctrine works, developed
within international conferences by experts in the field, and on the other

11 Published in the Official Journal of the European Union no. L 395 of 30 December
1989.
12 Published in the Official Journal of the European Union no. L 76 of 23 March 1992.
13 Gina Orga-Dumitriu, The European contract law. Realities. Influences. Field of application, C.

H. Beck, 2013.
14 In Algera Case, by the Decision of 12 July 1957, the European Court of Justice ruled

that "the absence of provisions in the constituent treaties do not prevent the settlement
of disputes and it will be taken into account legislation, doctrine and jurisprudence of
states in dispute", in C.N. Kakouris, Use of the Comparative Method by the Court of Justice of
the European Communities, School of Law. Pace International Law Review, 1994, pag. 276
on http://digitalcommons.pace.edu/cgi/viewcontent.
15 It was rightly held that the European Court of Justice can generate general principles

governing a European administrative law – see Ioan Alexandru (coordinator), Mihaela

Cărăuşan, Ilie Gorjan, Ivan Vasile Ivanoff, Cezar Corneliu Manda, Alina-Livia Nicu,
Crina Rădulescu, Cătălin Silviu Săraru, Administrative law within EU, Lumina Lex
Publishing House, Bucharest, 2007, pag. 283.

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The Opportunity of a European Administrative Contract Law

hand the way of the European institutional mechanisms, achieved by

harmonizing legal norms through directives and unifying laws by
regulations16.
Insisting on the first way there were identified within the most
recent doctrine17 three principles that complete the legal framework of
contracts and can give a new vision including the administrative
contracts field, especially those of public procurement. These principles
are: the principle of coherence18, the principle of continuity19 and the
principle of rebalancing the economy of the contract20.
They are partially grafted onto general principles included in the
Romanian public procurement legislation implemented through
Community directives: non-discrimination; equal treatment; mutual recognition;
transparency; proportionality; accountability21 (transparency – making available
the information on the procedure for awarding the concession to all
interesting parties; equal treatment - applying, in a non-discriminatory
manner, by the public authority, of the criteria for awarding the
concession; proportionality - requires that any measure established by the
public authority must be necessary and appropriate for the nature of the
contract; non-discrimination - applying the same rules by the public
authority, irrespective of the nationality of the parties to the procedure
for awarding the concession, subject to the conditions contained in
agreements and conventions to which Romania is a party; free competition –
providing, by the public authority, the conditions for any participant in

16 Gheorghe Stancu, Influences of global juridical order in the field of contract law, in
Law Review, nor. 10/2008, pag. 37.
17 Idem, Contributions to the doctrine for a new orientation of contract law , in Law

Review no. 6/2009, pag. 90-110.

18 This involves reducing contradictory clauses by the judge through a consistent

interpretation which in fact translates a common will initially imperceptible.

19 The principle of continuity of the contract is regarded as economic imperative – it

emphasizes on contract, considered a good that must be maintained durable and

effectively in a business environment, and as a moral imperative - the contract is a
requirement of the quality of contractual link based on mutual trust of contemporary
contractual action.
20 This principle is based on the factors that lead to "upheaval" the economy of the

contract and assumes that a contract must be executed to its economy, the
interpretation of the concept of "economy" devolving to the judge who will decide
whether the parties must return to the negotiating table or the contract requires the
annulment.
21 The principles are found in art. 2 of Law no. 98/2016.

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the awarding procedure to have the right to become the concessionaire

under the law, conventions and international agreements to which
Romania is a party).
Reflection of the new guidelines in contracts is also found in the
Romanian legislation in recent years - the Civil Code published - which
expressly states on the two principles that have found previously their
juridical consecration but they have not been enacted unequivocal so far:
freedom of contract22 and good faith23. The issue of interest here is
whether these principles can find substantiation in the field of
administrative contracts, given the private interest addressed primarily
through rules invoked.
The right of contracts of insurance rejoiced the same attention,
being drawn recently the Project of a European framework insurance contract by
a group of researchers from several member states of the European
Union, known informally as "the group of Innsbruck", which led to
numerous discussions due to its objective to develop a single legal
regime common to all EU Member States24.
I appreciate that nothing prevents from adaptation the principles
to the specificity of the administrative contract, composed of negotiated
clauses and regulatory clauses, as long as the public interest prevails.
Moreover, freedom of contract and good faith protect also the stages
prior to the conclusion and enforcement of contracts, taking into

22 Art.1169: The parties are free to conclude any contracts and determine their contents,
within the limits of law, public order and morals; art.1183 para1: The parties are free to
initiate, conduct or tear negotiations and cannot be held responsible for their failure.
23 Art. 14: Natural and legal persons participating in legal civil relations must exercise

their rights and perform their obligations in good faith, according to public order and
morals. Good faith is presumed until the contrary is proved; art. 1.170: The parties
must act in good faith both when negotiating and concluding the contract, and
throughout its execution. They cannot eliminate or limit this obligation; art. 1183 para
3: The party that initiates, continues or breaks negotiations contrary to good faith is
liable for damaged the other party. To establish the damage it will be taken into account
the expenditure incurred to negotiations, the waiver by the other party to any other
offers and similar circumstances.
24 Andrei Duţu Buzura, Simplification of European Contract Law. The Insurance

Contract, The impact of socio-economic and technological transformations at

national, European and international level; No. 5/2015,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2662041

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account inclusively the possibility of attracting pre-contractual civil

liability25.
We agree with the proposal26 that future legal regulations include,
in addition to the above principles, legalization of priority of public
interest before the private one with the express confirmation of the
principles of transparency, impartiality and public access to the contents
of the administrative contract, these being unable to materialize except
through their inclusion in a future Code of administrative procedure.
Also I consider important to regulate clearly the powers of the
administration deriving from the pre-eminence of public interest
prerogatives outlined in detail in French legal literature27:
• the power of guidance and control of the Administration;
• the prerogative of the unilateral alteration of the contract;
• the prerogative of direct sanctioning of contractual partner;
• the prerogative of unilateral annulment.
Referring to the power of guidance and control of the
administration, this is manifested by its possibility to review, oversee the
performance of the contract, but also to request data, information
relating to operations contracted. Unilateral amendment can operate
where the public interest requires, being outlined certain limits of this
prerogative:
• the authority cannot alter the essential elements of the
contract, such a change may be refused by the contractual partner, which
will ultimately lead to the termination of the act;
• the authority cannot alter the financial part of the contract;
• any alteration of the contractual conditions, determined by its
unilateral modification must necessarily be accompanied by a pecuniary
compensation, in order to respect the principle of financial balance.
Another essential prerogative reserved to the administration
derives from its possibility to apply sanctions directly to the contractual
partner, unlike private law where the breach of duty by one of the parties
can be established only in front of a court. In public law, the
administration may impose from pecuniary penalties (late payment) to

25 Oliviu Puie, Principles governing the matter of administrative contracts in

preliminary stages, conclusion and execution of the contract. Administrative procedures
for awarding contracts, in Romanian Pandects no. 9/2009, pag. 32.
26 Cătalin-Silviu Săraru, op. cit., pag. 246.
27 Phillippe Foillard, op. cit., pag. 241.

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coercive sanctions (entrustment of the contract to third parties, fulfilling

the contract in the name of the contractor that refused to do so, at its
own expense) or even termination of the contract.

III. CONCLUSIONS

All these elements, to which express regulations should be added,

concerning liability and its sorts, impose the conclusion that the
administrative contracts law is far from being homogeneous, the task of
its coding returns first of all to the doctrine that should inspire future
legislature to adopt an administrative procedure code in line with
domestic realities and contemporary mutations of the European
legislation.

REFERENCES

Ioan Alexandru (coordinator), Mihaela Cărăuşan, Ilie Gorjan, Ivan Vasile

Ivanoff, Cezar Corneliu Manda, Alina-Livia Nicu, Crina
Rădulescu, Cătălin Silviu Săraru, Administrative law within EU,
Lumina Lex Publishing House, Bucharest, 2007
Mauro Bussani, Ugo Mattei, Le fonds commun de droit privé européen, in
Revue trimestrielle de droit comparé, apud Vasile Pătulea,
Gheorghe Stancu
Andrei Duţu Buzura, Simplification of European Contract Law. The
Insurance Contract, The impact of socio-economic and
technological transformations at national, European and
international level; No. 5/2015,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2662041
Giuseppe Gandolfi, Pour un code européen des contrats, in Revue trimestrielle
de droit civil, 1992, pag. 707, apud Vasile Pătulea, Gheorghe
Stancu
C.N. Kakouris, Use of the Comparative Method by the Court of Justice of the
European Communities, School of Law. Pace International Law
Review, 1994, pag. 276 on
http://digitalcommons.pace.edu/cgi/viewcontent.
Gina Orga-Dumitriu, The European contract law. Realities. Influences. Field of
application, C. H. Beck, 2013

112

Pascariu,
CEEOL L. T. (2016).
copyright 2018 The Opportunity of a European Administrative Contract Law. European Journal of Law and
Public Administration, 3(1), 105-113.
CEEOL copyright 2018

The Opportunity of a European Administrative Contract Law

Oliviu Puie, Principles governing the matter of administrative contracts in

preliminary stages, conclusion and execution of the contract. Administrative
procedures for awarding contracts, in Romanian Pandects no. 9/2009
Vasile Pătulea, Gheorghe Stancu, Contract law, Editura C. H. Beck,
Bucharest, 2008
Gheorghe Stancu, Influences of global juridical order in the field of contract law, in
Law Review, nor. 10/2008
Gheorghe Stancu, Contributions to the doctrine for a new orientation of contract
law, in Law Review no. 6/2009

113

Pascariu,
CEEOL L. T. (2016).
copyright 2018 The Opportunity of a European Administrative Contract Law. European Journal of Law and
Public Administration, 3(1), 105-113.