ROMAN STATE PATRIMONY

ROMAN STATE PATRIMONY – Public and Private Domain

The patrimony of the State consists of all the rights and obligations of the State, the administrative-territorial units or their public entities, acquired or assumed in any capacity;

The rights and obligations relating to both public and private property of the state and administrative-territorial units are part of the public patrimony. In order to have a clear situation and for optimal management of the patrimony it is necessary, periodically, to carry out an inventory and to reassess it.

The main purpose of the inventory is to establish the actual situation of all elements of the nature of the assets, liabilities and equity of each entity, as well as of the assets and values held in any capacity, belonging to other legal or natural persons, with a view to drawing up the annual financial statements which must provide a true picture of the entity's financial position and performance for that financial year.

The exercise of public ownership has certain peculiarities, which relate both to its nature and destination and to the legal nature of the holders of that right.

Even though it is no longer predominant in the Romanian economy, public property rights are of particular importance in ensuring social development, because, on the one hand, it belongs to subjects of law which organise the social life itself in a state, and, on the other hand, it bears on goods which, in principle, interest society, even if at different levels : state, county or local. Therefore, the way in which the right to public property is exercised must correspond to its purpose, namely to ensure the realization of the interests of society as a whole, with a view to its balanced development.

Then, the holders of the public property right – the State and its administrative-territorial entities – are, first of all, subjects of public law and, in this capacity, appear as carriers of powers of power in the exercise of the state functions with which they are vested, according to the Constitution and the laws that organize their activity.

Thus, pursuant to Article 136 (2) of the Treaty, the Commission is required to submit a list of the following: (4) of the Constitution, under the organic law, public property may be administered to autonomous kings or public institutions or may be leased or leased; the same text also states that they may be put into free use to public utility institutions.

This provision is set out in Article 861 (2) of the Treaty. (3) NCC, which provides that, under the law, public property may be placed in administration or in use and may be leased or leased. Article 866 NCC also provides that the actual rights corresponding to public property are the right of administration, the right of concession and the right to use free of charge.

The provisions of the Constitution and those of the fundamental civil law have to be supplemented and correlated with those contained in other normative acts of interest to the matter, applicable even after the entry into force of the new Civil Code on October 1, 2011. Thus, with regard to the situation of public property belonging to administrative-territorial units, Article 123 (2) of the Treaty provides that the provisions of Article 123 (2) of the Treaty are not applicust to the provisions of this Regulation. (1) of Law No 1/2002 of the European Parliament and of the Council of 22 215/2001 of the local public administration provides that the task of the county and local councils to decide that assets belonging to their public domain, of local or county interest, as the case may be, are given in the administration of autonomous kings and public institutions, be leased or leased.

Also, according to Article 124 of the same law, local councils and county councils may, for a limited time, use movable and immovable property, local or county public property, as the case may be, non-profit legal persons engaged in the activity of charity or public utility or public services of local interest, in this case also the county one.

Therefore, the entrustment of public property to autonomous kings (such as RE-APPS, RE-RAR, etc.) as well as to state authorities at central or local level and the establishment, for their benefit, of their own right over the assets entrusted, the right of administration, constitutes a specific form of exercise of the right of public property itself.

It is not, however, the only way to exercise that right.

Public property may be leased, leased or put into use by other subjects of law, under the conditions laid down by law. And these legal operations are specific forms of the exercise of public ownership.

Right of administration of public property

The right of administration shall be provided for, in the first place, by Article 136 (2) of the Treaty. (4) of the Constitution. The New Civil Code also regulates the right of administration in an entire section of Title VI, devoted to public property rights (art. 867-870).

In the analysis of the legal regime of the right of administration, account should also be taken of the provisions contained in other special normative acts, which remain edit in force after the adoption of the new Civil Code, such as O.G. No. 15/1993 on certain measures for the restructuring of the activities of the Autonomous Kings and O.U.G. No. 30/1997 on the reorganisation of autonomous kings.

According to the abovementioned regulations, public property is entrusted, by administrative acts, to autonomous kings, prefectures, central and local public authorities, as well as to public institutions of national, county, city or communal interest.

Thus, Article 867 (2) of the Treaty provides that the Commission shall, in accordance with the procedure laid down in Article 1. The NCC shall provide that the right of administration shall be constituted by decision of the Government, the county council or, where appropriate, the local council, and Article 868 (2) of the Treaty shall be the right of administration. (1) designates the holders of that right, i.e. it may belong to the autonomous kings or, where appropriate, to the central or local public administration authorities and to other public institutions of national, county or local interest.

From the point of view of the legal nature of the relations that are established between the State and the beneficiaries of the right of administration, we note that these are subordinate relations, and the administration of public property to the beneficiaries is usually done by administrative acts of an individual nature, and not on the basis of legal relations under private law.

The very subjects of the right of administration are established by individual acts of the competent public authorities, according to the law, to create them, at central or local level, for the purpose of achieving public interests or for the purpose of performing public services.

The entrustment, by legal acts of administrative law in the context of subordinate relations, of public property to autonomous kings, central and local bodies of state administration and other subjects of public law, at central or local level, allows them to have their own patrimony, distinct from that of other subjects of law, on the basis of which, on the one hand, , they will achieve the goals for which they were set up and, on the other hand, will be able to participate in the civil circuit, according to their capacity for use and exercise as legal persons, as i have shown before.

From this point of view, Article 868 (2) of the Treaty provides that the Commission shall, in accordance with the procedure laid down in Article 888 (2) of the Treaty 2. The NCC shall provide that the holder of the right of administration may use and dispose of the property given in administration under the conditions laid down by law and, where appropriate, by the act of setting up that subject of law itself.

Furthermore, in view of the very nature of the subordination relationships by which the right of administration arises, Article 867 (2) of the Treaty provides that the Member States may, in accordance with the procedure laid down in Article 867 (2) of the Treaty, decide on the application of this Regulation. 2. The NCC shall provide for the right of control of the bodies which have ordered its establishment over the manner in which the holders exercise the right of administration.

The right of administration, irrespective of the manner in which it was acquired, may, under certain conditions, be withdrawn by the public authority entitled to do so for the purpose of different purposes.

In accordance with Article 12(2) of Regulation (EC) No 1493/199 (5) of Law No 17/2002 of the European Parliament and of the Council of 2 213/1998, in disputes concerning the right of administration, the state is represented by the Ministry of Public Finance, and the administrative-territorial units by the county councils, the General Council of Bucharest or the local councils, which give written mandate, in each case, to the chairman of the county council or the mayor. He may appoint another state official or a lawyer to represent him before the court. These are situations where the question of the defence of the law arises in relation to all other subjects of law, other than that which, by its act of authority, constituted it.

Since the right of administration has its sorghum in the right of public property, it will have the same legal characters as this one, namely it is an inalienable, imprescriptible and indistinguishable right.

The content of the right of administration is similar, but not identical to, that of the public property right on the basis of which it was formed.

Possession signifies the material element of ownership of the property under the administration of its holder and does not differ from that of the holder of the public property right belonging to the State or its territorial entities. As for the psychological element of the possession attribute, it is appropriate to the right of administration and not to the right of public property on the basis of which it was formed.

The use attribute forms the substance of the right of administration. It allows the holder of the goods thus received to achieve the purposes for which he carries out his activity, taking into account the use and public usefulness of the goods entrusted.

If the goods subject to the right of administration are frugal, its holders will be able to harvest the fruit produced, in a different way, as are autonomous kings or public institutions. Thus, while the autonomous regions operating as economic enterprises will use the fruits to cover the expenses necessary for their activity and to achieve any benefits, the public institutions, being financed from the budget, will pay to the budget the revenues realized. It is not excluded that the act of establishment may exceptionally enable them to use income made by using the assets under their administration as extra-budgetary sources of financing.

As regards the attribute of the provision, Article 868 (2) shall be replaced by the following: (2) The NCC must be interpreted as having regard to the material disposition of the goods constituting the object of the right of administration, used in accordance with their intended purpose. Under certain conditions, the material provision may also be exercised by the collection of derivative products of the good under the administration of an autonomous king or a State unit, if the nature of the good and the instrument of incorporation permit it.

In any event, holders of the right of administration shall not have the right of legal provision over the assets thus entrusted.

Specialists with experience in the inventory and evaluation of these rights have identified major differences in the management and management of public assets, among which we mention:

• Due to errors in inventories at national level, both as inventory objects, classification codes and value, the country rating suffers (rating agencies cannot be challenged);
• Due to inventory defects, most public institutions and UATs cannot justify the opportunity of the various investments absolutely necessary in reality;
• Due to the lack of a fair and up-to-date inventory, the absorption of European funds at national level is not maximised;
• Due to the lack of inventory of roads / land related to them, problems arise in the realization of street nomenclatures, PUGs, etc. . The lack of nomenclatures will lead to a flawed achievement of the census which has a major impact on politics at national and European level.

These examples can unfortunately continue...

The activity of Inventory and Heritage Assessment is of particular importance in the correct management of the heritage or which entities all the more so of the Romanian State, hence all the inequities and possibilities of its devaluation.

Concession of public property, public domain

Both the Constitution and the New Civil Code, as well as other normative acts, such as Law No. 15/1990 on the reorganization of state economic units as autonomous kings and companies, Law No. 215/2001 on local public administration, O.U.G. No. 34/2006 on the award of public procurement contracts, public works concession contracts and service concession contracts and O.U.G. No. 54/2006 on the regime of concession contracts for public property, regulates the possibility of concession of public property of the State or its territorial entities.

Article 871 NCC does not contain a definition of the concession contract; the text provides, in its first paragraph, that a concessionaire has the right and, at the same time, the obligation to exploit the concessioned property, in return for a fee and for a fixed period, subject to the conditions laid down by law and the terms of the concession contract. On the other hand, Article 1 (1) shall be replaced by the following: (2) of O.U.G. No. 54/2006 defines the contract in question as that contract concluded in written form, whereby a public authority, called a grantor, transmits, for a specified period, to another person, called a concessionaire, acting at his own risk and on his liability, the right and obligation to exploit public property in exchange for a sum of money, called a royalty. Article 3 of the Ordinance stipulates that goods which are public property of the state or administrative-territorial units may form the object of this contract, in accordance with the Constitution and the legal regulations concerning public property.

Even if Article 871 NCC does not specify, where the concession contract concerns public property of the State, the status of grantor shall be granted by ministries or other specialized bodies of the central public administration; when it concerns public property of the county, city or commune, this quality will be appropriate for county councils, local councils. General Council of Bucharest or public institutions of local interest (art. 5). Article 871 NCC provides that any natural or legal person may be a concessionaire. In turn, Article 6 of O.U.G. No. 54/2006 provides that any natural or legal person Romanian and foreign may be a concessionaire. The order states that, irrespective of the nationality or nationality of the concessionaire, the concession contract will be concluded in accordance with the law of Romanian (Article 7).

With regard to the exercise of the right of concession, Article 872 NCC provides that the holder of that right may carry out any material or legal acts necessary to ensure the exploitation of the concessioned property. However, under the penalty of absolute nullity, the concessionaire may not alienate or strike the property given in the concession or, as the case may be. goods intended for or resulting from the realization of the concession, goods which, according to the law or the instrument of incorporation, must be returned to the grantor upon termination, for any reason, of the concession.

on the other hand, Article 872 (2) of the Treaty provides that the Commission shall, in accordance with the procedure laid down 2. The NCC shall allow the concessionaire to acquire the fruit in his property and, within the limits laid down by law and by the instrument of incorporation, the products of the concessioned good.

Delimitation of the right of concession of public property from the right of administration corresponding to public property

Between the right of administration and the right of concession we find some similarities, but also important differences.

From the point of view of similarities, it can be noted that both are real rights which have their sorghum in the right of public property and constitute specific ways of exercising that right.

Nor does neither rights constitute a dismemberment of public ownership.

However, there are important differences between them. Thus, first of all, the right of administration may belong only to subjects of public law – autonomous kings, prefectures, central and local public authorities (Article 868 para. (1) NCC] whereas the right of concession may belong only to subjects of private law, Romanian or foreign natural or legal persons (Article 6 of O.U.G. No 54/2006).

Secondly, the right of administration is born only by means of an administrative act of authority issued by the competent state body – the Government, the county council, respectively the General Council of Bucharest, the local council (art. 867 para. 1. NCC] - whereas the right of concession is born solely on the basis of a contract concluded between the grantor, the holder of the public property right, and the concessionaire, the beneficiary of the concession (Article 1 (1) (a) of Regulation (EEC) No 2081/92). (2) of O.U.G. No. 54/2006].

Thirdly, in terms of powers, the holder of the right of administration may possess, use and, within certain limits, even dispose of the property received, whereas the right of concession confers on the concessionaire only the right to possess the property, to use it for the purpose set by the parties by contract and to collect its fruit, as well as, within the limits laid down by law and in the concession act , even the products of the concession.

Finally, the right of administration is a real right, in principle, perpetual and inalienable, whereas the right of concession is a real, temporary and inalienable right.

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