This article examines a landmark ruling by the High Court of Cassation and Justice, which addresses a critical judicial dilemma over the authority to resolve disputes in public procurement contracts. This concern has gained prominence following the recent amendments to Law no. 101/2016 by Law no. 208/2022, effective as of September 10, 2022. The Court’s decision primarily centers on assigning jurisdiction to the administrative and fiscal litigation section for such disputes.
The legal community in Romania has faced divergent judicial approaches due to varying interpretations of a clause in public procurement legislation. This clause explicitly outlines the applicability of amendments only to award procedures initiated after its effective date. The ambiguity lies in whether this clause also covers changes related to court jurisdiction.
Evolution of Jurisdictional Competence
From 2016 till the introduction of Law no. 208/2022, the authority to adjudicate public procurement disputes underwent several legislative changes:
- Initially, administrative litigation courts had exclusive jurisdiction over all cases related to public procurement, ranging from compensation to contract termination.
- A 2018 amendment divided jurisdiction between civil and administrative courts, transferring issues related to contract execution to civil courts.
- The latest amendment, effective September 2022, grants administrative litigation courts jurisdiction over a broader range of cases, including those related to contract execution.
The Discord in Judicial Interpretation
Law no. 208/2022 sowed confusion by specifying that its provisions apply only to award procedures initiated after its enactment. Some courts took a narrow view, applying the changes only to cases concerning post-amendment award procedures. Others adopted a broader interpretation, citing the Code of Civil Procedure, which states that new procedural laws apply to proceedings initiated after their enactment, irrespective of when the award procedure started.
High Court’s Clarification
The High Court of Cassation and Justice, in Decision no. 11/2023, endorsed the broader interpretation. The Court concluded that the transitional provision in Law no. 208/2022 only applied to award procedures, not to the jurisdictional competence for dispute resolution. The Court also invoked the general principle from the Romanian Code of Civil Procedure, asserting that new laws apply only to proceedings initiated after their effective date, without regard to the award procedure’s start date.
The High Court of Cassation and Justice’s recent ruling provides much-needed clarity on the issue of jurisdictional competence in disputes related to public procurement contracts in Romania, particularly in the wake of legislative amendments to Law no. 101/2016. This landmark decision emphasizes the critical importance of interpretive precision in evolving legal landscapes.