English
We considered of importance the rendering of an analysis on the means the procedure of releasing the construction permit in the field of infrastructure is legally regulated, starting from a series of actual situations we have encountered.
Thus, in case the delay in starting the construction works, especially those concerning new roads projects, has been the result of the inadequate means that the relevant authorities in charge with the release of construction permits have used in applying the legal instruments issued by the law-giver precisely for facilitating the expeditious implementation of the administrative procedure period prior to the actual commencement of performance of the construction works, regardless if the same consist in new projects (highways, express roads etc.) or rehabilitation works on the already existing roads.
The topic of this analysis consists in the way it is legally regulated the release of the construction permit in the field of the road infrastructure, starting from the premises that one of the delay reasons in performing the road infrastructure works has been the release of the construction permit required for the commencement of works performance.
By this analysis we will illustrate the modality this problematic should be approached, to this end a synthetic presentation of the legal provisions, both general and derogatory, being carried out.
I. General legal framework. Derogatory provisions.
Presently, the Law no. 50/1991 authorizing the execution of construction works, republished, represents the generally applicable legal instrument. This law establishes the terms for authorizing the execution of any construction works, regardless of the type of works to be carried out.
We notice that, without entering an argument regarding the correct legislative mechanism by which derogation, exceptions, etc. should be created from the legal framework instrument, for certain categories of works[1] there have been regulated both for the construction permits issuing authorities derogatory legal instruments, legal terms for releasing different notices, approvals, certificates and permits required for the execution of such works, the mechanism of tacit approval applicable in certain situations and, last but not least, the special conditions for releasing the construction permits.
Thus, by the Law no. 255/2010 regarding the compulsory acquisition for public interest, required for accomplishing certain objectives of national, county and local interest, under the chapter VI – Notice, approvals, certificates and permits under this legislative instruments there have been regulated legal instruments derogatory from the general applicable law (Law no. 50/1991).
II. Relevant aspects regarding the derogatory clauses established in the field of infrastructure concerning the construction permits as well as the notices, approvals, permits and authorizations.
We notice that, by the Law 255/2010 the law-giver firstly establishes shorter terms for releasing and delivering the town-planning certificates (10 calendar days as of the date of submitting the documentations), as well as the notices, approvals, permits and authorizations required by the town-planning certificate (15 days as of the date of submitting the documentation), including the tacit approval mechanism applicable in the case of failure of the competent authorities to release the documents upon the express terms provided in the legislative instrument.
The major change brought by the Law 255/2010 is, however, the aspect concerning the actual release of construction permit.
To this end, we will notice that an exceptional situation, mentioned within the Law no. 50/1991, is transformed in general rule in the field of infrastructure, by the Law no. 255/2010.
According to the art. 24 para. (4) of the Law no. 255/2010 « The construction permit for works shall, in all cases, released immediately, according to the art. 7 para. (16) of the Law no. 50/1991 authorizing the execution of the construction works, republished, as further amended and completed.”
The provisions of the art. 7 para. (16) of the Law no. 50/1991 regulate the means of releasing the construction permits in exceptional cases („constructions presumably dangerous for the public” s.n.), however, by the art. 24 para. (4) of the Law no. 255 the law-giver has expressly provided that this method shall be applied „in all cases”.
Considering that, according to the art. 7 para. (16) of the Law no. 50/1991 the construction permit shall be immediately released, being conditioned solely by the compliance of the law regarding the assessment of the impact on the environment, this mechanism is also transferred in the Law no. 255/2010, thus, presently, according to the provisions of the two relevant legal instruments, we deem that the competent authorities must immediately release the construction permits.
III. Tacit approval.
Another particularity of the Law 255/2010 is the sanctioning of the lack of reply from the competent authorities in releasing the town-planning certificates, approvals, notices, permits and authorizations, except for the environment approval, in case such documents have not been communicated within the terms indicated in the art. 24 of the Law 255 for each of the same.
Thus, upon meeting the legal term for the release of each of the documents, each of such documents shall be deemed as approved, by applying the provisions of the GEO no. 27/2003 regarding the procedure of tacit approval.
We specify that this measure is strictly applicable for the cases regulated by the Law 255/2010, and cannot be extrapolated to the other cases regulated by the Law 50/1991.
Such a conclusion is presently established also by the practice of the court of law, having a compulsory nature, to this end making reference to the Romanian High Court of Cassation and Justice Decision no. 13/2013[2], according to which „every time the law-giver had intended for certain stages of the administrative procedures in this field to be subject to tacit approval had expressly provided as such (…)”, including the provisions of the art. 24 para. (5) of the Law 255/2010 being expressly provided in this case.
In the case of tacit approval of the town-planning certificates, of notices, of approvals, of permits and of authorizations, further to the expiry of the legal terms for the competent authorities to approve the same, the art. 25 of the Law had also established the obligation of releasing the official document within 5 business day term, calculated as of the date of tacit approval.
IV. Instead of conclusions
The provisions of the Law 255/2010 have a beneficial role in expediting the procedures for complying with the obligations falling with the competent public authorities in charge for the development of objectives of national, county or local national interest, as the case may be, eliminating the multitude of bureaucratic aspects entailing delays in executing the infrastructure works.
It remains to be seen how open the authorities involved in the process of European funds absorption and of developing the infrastructure network in Romania will be regarding the implementation of these legal provisions.
[1] We make reference to the aggregate of works mentioned within the art. 1 of the Law no. 255/2010;
[2] published in the O.M. no. 674 on November 1st 2013;