By Constitutional Court decision no. 173 of April 8, 2025, published in Official Gazette no. 447 of May 27, 2026, the Court admitted the exception of unconstitutionality of certain provisions that imposed an excessive security deposit for challenging in court the decisions of the National Council for Solving Complaints (CNSC).
What does it stipulate?
The Court declared unconstitutional the legal provisions that obliged economic operators to constitute a guarantee (security deposit) calculated as a percentage of the estimated value of the public procurement contract when filing a complaint in court against a CNSC decision. This mechanism imposed prohibitive costs, especially in the case of high-value contracts, effectively discouraging companies from defending their rights before the courts.
In its reasoning, the Court noted that establishing a security deposit related to the total value of the contract, and not to the actual object of the dispute or a reasonable amount, represents a disproportionate barrier to free access to justice. Such an excessive financial requirement practically nullified the right to an effective remedy against CNSC decisions, thus violating a fundamental constitutional principle.
The immediate effect of the decision is the elimination of the obligation to constitute this security deposit in the form declared unconstitutional. Courts can no longer request or impose the payment of this guarantee to admit for judgment complaints filed against CNSC decisions. Furthermore, the transitional rule that extended the application of these rules to ongoing procedures at the date of entry into force of the emergency ordinance was also invalidated.
Who does it apply to?
The decision has a direct impact on all economic operators (Romanian or foreign companies) participating in public procurement, sectoral procurement, or concession procedures in Romania. It particularly targets companies in sectors such as construction, IT, energy, infrastructure, consulting services, and equipment supply, which frequently challenge the results of award procedures.
What should you do?
- Evaluate unfavorable CNSC decisions where the appeal deadline has not expired, but where you abandoned the action due to the prohibitive costs of the security deposit.
- Review your public procurement litigation strategy, considering that the financial barrier for challenging in court has been eliminated.
- Directly invoke this decision in any ongoing litigation where the admissibility of the complaint is discussed from the perspective of constituting the security deposit.
Source: Official Gazette, Part I, no. 447 of May 27, 2026.
Note: This material is strictly for informational purposes and does not constitute legal, tax, or business advice. As the interpretation and application of legal provisions can vary significantly depending on the specific circumstances of each entity, we recommend seeking specialized legal assistance before adopting any operational decisions based on these changes.