Recentele modificări ale O.U.G. nr. 34/2006, un temei pentru reorientarea contractelor administrative spre libertatea contractuală?

Abstract

Because of the need to ensure an effective valorization of public assets and funds or to guarantee the proper functioning of public services, the administrative contract is based on the principle of subordinating the freedom of the contract to the public interest. The evolution of legal regulations in this field has proved the permanent care for finding the optimal solutions in order to fulfill the goals of every public authority, as well as to maintain the balance concerning the rapports in the private sector. Due to more permissive regulations, until the moment the G.E.O. no. 34/2006 came into force, the public authorities resorted to the easiest solutions in choosing fellow contractors and executing the public affairs, among which one can mention the joint ventures, which in some cases were banned by the courts of law. Currently, after the Emergency Government Ordinance no. 76/2010, modified by the Law no. 278/2010, was adopted, one might say that the legislator has opted, in the common law, for a mixed policy, which distinguishes between the rules applicable in the pre-contractual stage, following for the most part the power of the administrative law, and the rules applicable in the contractual stage, following the commercial law.