LAW OF THE REPUBLIC OF MOLDOVA

of February 20, 2025 No. 22

About concessions of works and concessions of services

The Parliament adopts this organic law.

This law partially shifts (parts (1) and (2) articles 1, of article 2-5, of part (1) and (4) articles 6, of article 7-8, 10-14, 17-32, 34-45 and appendix I, II, IV-VIII and XI) the Directive 2014/23/EU of the European parliament and Council of February 26, 2014 about award of concession treaties published in the Official magazine of the European Union by L94 of March 28, 2014, CELEX: 32014L0023, with the last changes made No. 2023/2497 Delegated by regulations of the Commission (EU) of November 15, 2023 about modification of the Directive 2014/23/EU of the European Parliament and Council concerning the ceiling price of concessions.

Chapter I. Basic provisions

Article 1. Subject and scope

(1) This law regulates procedure for award of concession treaties about works and concession treaties about services, the legal regime applicable to these agreements, and also specific aspects connected with their execution.

(2) This law is applied to concession treaties about works and to concession treaties about services, to the awarded economic operators:

a) the buying bodies; or

b) the buying subjects, provided that works or services are intended for implementation of one of the types of activity specified in appendix 1.

(3) This law is applied to concession treaties about works and to concession treaties about services which estimated value without the value added tax is equal or exceeds cost limit, equal 20 000 000 lei.

(4) Concession treaties about works and concession treaties about services which estimated value without the value added tax does not exceed cost the limit provided in part (3), are awarded with respect for the principles provided in part (2) Articles 2, in accordance with the terms and the procedures approved by the Government.

(5) This law is not applied to services, of common interest, not having economic nature which are provided without equivalent to cost services, such as the services constituting exclusive prerogative of the state according to system of internal affairs, justice and the state system of social insurance, and also other services which can be qualified as services, of common interest and not having economic nature.

(6) the Government estimates need of adjustment of the cost limit provided in part every two years (3), and if necessary suggests Parliament to review it.

(7) Cost the limit provided in part (3), cannot exceed the limits set in the Agreement on public procurements of the World Trade Organization.

(8) the Agency of public procurements publishes on the official website the limits set in the Agreement on public procurements of the World Trade Organization, in day of entry into force of the provisions setting the corresponding limits.

Article 2. Purpose and principles

(1) This law pursues the following aims:

a) encouragement of competitiveness of economic operators;

b) effective, economical and productive use of public resources;

c) ensuring integrity of the procedure of award of concession treaties about works and concession treaties about services;

d) creation of the regulatory base for award of concession treaties about works and concession treaties about services.

(2) Award of the concession treaty about works and the concession treaty about services is based on the following principles:

a) administrative freedom of bodies of the public power – freedom of bodies of the public power to establish optimum method of management of performance of works or provision of services for providing the high quality level, safety and availability of these works and services, the equal relation and general access to public services and the rights of users to them;

b) nondiscrimination – creation of necessary conditions for ensuring the real competition in the market, irrespective of form of business, nationality or type of property of the potential partner so that any economic operator answering to conditions could participate in procedures for award of concessions and has chance of award of the relevant agreement to it;

c) proportionality – all measures established by the buying body or the subject shall be necessary and corresponding to nature of the agreement;

d) mutual recognition – recognition by default documents and certificates issued by bodies of other state if the corresponding recognition is required by the international agreements which party is the Republic of Moldova;

e) transparency – provision to interested persons and the public of all information concerning application of the procedure of award of concession and agreement performance with observance of provisions of Article 31;

f) legality – observance of the national legal system and international treaties which party is the Republic of Moldova;

g) acceptance on responsibility – establishment of the obligations for persons participating in holding procedures for acceptance, the reporting and execution of responsibility for effects of actions and the made decisions, and also obligations of the buying bodies or the buying subjects, economic operators and concessionaries to bear legal responsibility in case of violation of obligations assumed within concession.

Article 3. The right to establish the services which are of general economic interest

This law does not mention:

a) the right of bodies of the central and local public authority to determine services which they consider by the services which are of general economic interest, procedure for the organization and financing of these services according to regulations about government assistance and also specific obligations to which these services shall submit;

b) property mode; in particular, this law does not require obligatory privatization of the state companies providing public services.

Article 4. Basic concepts

For the purposes of this law the following basic concepts are used in value:

1) the candidate – the economic operator who requested the invitation to participation or was invited to participate in the procedure of award of the concession treaty;

2) the candidate – in the value determined in the Law on public procurements No. 131/2015;

3) concession – concession of works or concession of services, namely:

a) the concession treaty about works – the paid agreement signed in writing according to which one or several buying bodies or the buying subjects trust performance of works to one or several economic operators at the same time equivalent of cost of works is provided or exclusive right on operation of the works constituting the subject of the agreement or this right and payment;

b) the concession treaty about services – the paid agreement signed in writing according to which one or several buying bodies or the buying subjects trust one or several economic operators provision of services and management of services, others than the performance of works specified in Item and), at the same time equivalent of cost of services is provided or exclusive right on operation of the services constituting the subject of the agreement or this right and payment;

4) the concessionary – the economic operator to whom the concession treaty is awarded;

5) documentation on award – document package, connected with concession, containing the announcement of concession, requirements, criteria, rules and the other information necessary for economic operators for ensuring complete, correct and distinct informing on requirements of the buying body or the buying subject, of concession elements, of the subject of the agreement and procedure for holding procedure of award, including technical specifications or the descriptive document, the offered contractual terms, formats of submission of documents by candidates/offerers, and also information on the general obligations applicable to candidates/offerers, and the feasibility statement;

6) exclusive rights – the rights granted by competent authority by means of the published normative or administrative act which action consists in restriction of implementation of certain activities by one economic operator that significantly worsens capability of other economic operators to perform such activities;

7) the special rights – the rights granted by competent authority by means of the published normative or administrative act which action is in restriction of implementation of certain activities by one or several economic operators that significantly worsens possibility of other economic operators to perform such activities;

8) performance of works – accomplishment and/or designing and performance of works, connected with one of the types of activity specified in appendix 2, or the works conforming to the requirements established by the buying body or the buying subject exerting decisive impact on type or designing of works;

9) innovation – in the value determined by the Law on public procurements No. 131/2015;

10) the public company – the legal entity who performs economic activity and on who the buying bodies can exert directly or indirectly decisive impact owing to the property right, the financial participation or rules regulating its activities.

Any of the following situations in which that directly or indirectly is considered rendering decisive influence by the buying body:

a) owns mostly subscribed capital of the company;

b) controls majority of votes according to the shares issued by the company;

c) can appoint more than a half of members of the administrative, leading or supervisory authority of the company;

11) work – in the value determined by the Law on public procurements No. 131/2015;

12) electronic means – in the value determined by the Law on public procurements No. 131/2015;

13) the offerer – the economic operator who provided the offer within the procedure of award of the concession treaty;

14) economic operator – the physical person or legal entity of public or private law, group or association of such persons, including the temporary association consisting of several such subjects which on legal causes perform works deliver goods or provide services in the market;

15) written / in writing – in the value determined by the Law on public procurements No. 131/2015;

16) the third state – any state, except for member states of the European Union, European economic space and the Swiss Confederation.

Article 5. The buying bodies

(1) For the purpose of this law the buying bodies are bodies of the central and local public authority, legal entities of the public law, or the associations consisting of one or several such bodies or legal entities of the public law, others, than authorities, legal entities or associations which perform one of the types of activity specified in appendix 1, and which award the concession treaty on implementation of one of the corresponding types of activity.

(2) for the purposes of this law the subject answering in total to the following conditions is considered the legal entity of the public law:

a) it is founded only for requirements satisfaction of general interest, not having industrial or commercial nature;

b) has the status of the legal entity;

c) its activities are provided at the expense of public means or its management is under control to bodies of the public power or other legal entities of the public law, or its administrative, leading or supervisory board consists more than for 50 percent from the members appointed by relevant organs or persons.

Article 6. The buying subjects

(1) For the purpose of this law the buying subjects are the following subjects which perform one of the types of activity specified in appendix 1, and award the concession treaty on implementation of one of the corresponding types of activity:

a) bodies of the public power, legal entities of the public law, the associations consisting of one or several such bodies or several such legal entities;

b) public companies;

c) legal entities, others, than provided in Items a) and b), acting on the basis of the special or exclusive rights granted by competent authority for implementation of one of the types of activity specified in appendix 1.

(2) Subjects which are granted the special or exclusive rights by means of the procedure during which proper publicity is provided and during which provision of these rights is based on objective criteria are not the buying subjects in value of Item c) of part (1). These procedures include:

a) procedures for award, with preliminary publication of the announcement of participation and/or the preliminary invitation to participation in the competitive procedure of submission of offers, the power engineering specialists provided by the Law on public procurements No. 131/2015, by the Law on purchases in sectors, water resources, transport and post services No. 74/2020, and also the law on award of certain agreements on works, delivery of goods and provision of services by the buying bodies or the buying subjects in the field of defense and homeland security, or this law;

b) the procedures providing proper transparency in case of issue of permissions based on objective criteria in the field of operation of installations of natural gas, construction of installations on production of electricity, post services which are not reserved or are not subject to reservation, operation of hydrocarbons and public services in transportations of passengers by railway and road transport.

Article 7. Operational risk

(1) Award of the concession treaty about works or the concession treaty about services assumes transition to the concessionary of the operational risk connected with operation of the corresponding works or services, the including risk of demand and/or risk of the offer.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info