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News in Laws Monthly Legal Newsletter February 2014

Cover article: Modern Times for Copyright Law


by Diana Condurache, Managing Associate Voicu & Filipescu In this months cover article, we would like to draw attention to the discussions at European level on the adapting of the copyright laws to the societys new needs generated by the technological progress.

VF News
Voicu & Filipescu launched Changing Laws -- 2013 in Review, a set of articles analyzing the major legislative changes of 2013 in Romania, their impact on the business environment, as well as the main trends for 2014.

Legislative Retrospective
Voicu & Filipescu is a full service law firm, covering all legal areas relevant to your companys activity. This issue of our monthly newsletter provides you with a brief description of some of the recent legal amendments in: Dispute resolution Employment Insolvency Insurance, private pensions and capital market Public procurement Tax and accountancy Following its annual performance appraisal, Voicu & Filipescu promoted to partner Georgiana Badescu, one of the most active members of the firms competition and M&A practices.

Drafts in Laws
In the ever changing economic environment, action rather than reaction is a key answer to your business. So why wait for legal amendments to come into effect, when you can anticipate their impact? Get ahead changes with our guide on legislative projects and find out which one of the turmoil of legislative amendments is more likely to affect your business and how. Read in this issue of Drafts in Laws, our newsletters special feature, about draft laws in the following areas: Private pensions Public procurement

Voicu & Filipescu is recommended by some of the most important legal guides for its activity in the practice areas of interest to your company. Our lawyers practice has received strong international recognition in renowned publications such as Chambers and Partners, Legal500, PLC Which lawyer? and IFLR1000.

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News in Laws Monthly Legal Newsletter February 2014

MODERN TIMES FOR COPYRIGHT LAW


Digitized world demands for modern solutions of legal protection for the original works of authorship. Under the initiative Licenses for Europe, the European Commission released a structured dialogue for all interested parties with the aim to review and to modernize the EU copyright legislative framework. Representatives of rights holders, licensing bodies, commercial and non-commercial users of protected content, as well as internet end-users gathered together in working groups to overcome problems European citizens may face in four areas: (i) crossborder access and the portability of services, (ii) Licensing for small-scale users of protected material, (iii) European audiovisual cultural heritage, (iv) text and data mining.

Cross-border access and the portability of services


With thousands of people being caught between hard jobs and family life it is expected that e-services, ecommerce and all sort of other activities via internet shall definitely increase in importance. Access to internet is what this society needs in order to keep up with modern times. Yet, not once those holding the IP rights or online platforms choose to impose cross-border restrictions, limiting thus the distribution of content to one or just a few Member States. It may therefore happen that one citizen of an EU country be unable to benefit from the same services while being abroad. To sum it up, the problems that need to be cured concern:

Lack of cross-border access (same services not available in all Member States); Redirection of users (to a portal preferred by the service provider); Lack of portability (no access to services available in ones home country when travelling abroad).

Combining the consumers need for ease of access to internet and authors and distributors need for copyright protection, is what the European Commission is currently seeking to achieve by recasting the copyright regulation. The Commission focuses on feasible ways for portability of online content across borders and increasing crossborder availability of online services in the EU.

Licensing for small-scale users of protected material


Another topic to be reviewed from a different angle under the new copyright regulation concerns licensing for small-scale users of protected material. There is no news that Facebook, YouTube and other similar social networks are now the true social drivers. Working or just being too young to work, many people are now coding the night away, striving to win social networking games, to post pictures, to communicate with the others, or just to relax watching a movie or auditing a tune. According to the Commission, on average, every minute, people upload 72 hours of video to YouTube, and over 150,000 photos to Facebook. The Commission's objective is to foster transparency and ensure that small-scale endusers have greater clarity on uses of protected material and easy access to licensing. The new draft legislation endeavors also to solve the problem of reselling the licenses for digital content that were received through digital transmission. The backdrop for such a change is the 2011 UsedSoft CJEU Decision holding that digital transmission of a software triggers exhaustion of the software owner's distribution right. It should also be stated that the Court held that an original acquirer of a tangible or intangible copy of a computer program for which the copyright holders right of distribution is exhausted must make the copy downloaded onto his own computer unusable at the time of resale. If he continues to use it, he would infringe the copyright holders exclusive right of reproduction of his computer program. In contrast to the exclusive right of distribution, the exclusive right of reproduction is not exhausted by the first sale.

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News in Laws Monthly Legal Newsletter February 2014

Appling such reasoning to other digital content, such as e-books or music files, is heavily debated. While the Computer Program Directive does not require that a tangible copy of a computer program be released to the market in order for exhaustion to apply with regard to that copy, the Information Society Directive, regulating ebooks or music files, specifically limits the scope of the right to distribute a copyright-protected work, and the principle of exhaustion, to those works that are embodied in a tangible object.

European Audiovisual Cultural Heritage


Another revision envisaged by the new regulation refers to audiovisual cultural heritage. The Commission's objective is to facilitate the deposit and online accessibility of films in the EU both for commercial purposes and non-commercial cultural and educational uses. It should be outlined that the purpose is to preserve the European cinematographic works and promote the interest of the European citizens towards European masterpieces.

Text and Data Mining


The new copyright legislation raises controversies concerning text and data mining (TDM). The overall goal of TDM process is to extract information from various sources and transform it into an understandable structure for further use. The Commission's objective is to promote efficient TDM for scientific research purposes, by promoting solutions such as standard licensing models and technology platforms to facilitate TDM access. Those attending the working group consider that mining of data and texts to which a lawful access had been obtained should not be subject to an additional license or payment. The discussions are currently facing some obstacles. Several research organizations have left the Working Group considering that having placed licensing as the central pillar of the discussions has not made a focused evaluation possible. The EU copyright rules are currently ongoing Public Consultation with the purpose to gather input from all stakeholders on above presented topics. It remains to be seen how all the above ideas will be finally shaped by the new regulation and how such will be finally implemented by each Member State.

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News in Laws Monthly Legal Newsletter February 2014

dispute resolution legislative retrospective


Decision no. 19 of November 18, 2013 of the High Court of Cassation and Justice (ICCJ) on the payment of stamp duties for applications whereby legal expenses are claimed by separate means, was published in the Official Gazette of Romania Part I, no. 45 of January 20, 2014.
Given that some courts of law have imposed on the applicants claiming, by separate means, the payment of legal expenses, the obligation to pay a stamp duty according to Articles 1 and 2 (1) of Law no. 146/1997, as subsequently amended and supplemented, and that other courts of law have considered that the applications having as subject matter the granting - by separate means - of legal expenses, are exempted from the payment of stamp duties, in consideration of their ancillary nature as opposed to the main applications, there was a need to promote an action in the interest of the law, action aiming at ensuring the unitary interpretation and application of the law. The High Court of Cassation and Justice admitted the action in the interest of the law filed by the general prosecutor with the Public Prosecutors Office attached to the ICCJ and established that the applications claiming - by separate means - the granting of legal expenses are main actions subject to stamp duty, which is calculated at the value of the submitted claims, even if the applications which were the subject matter of the dispute, wherefrom such expenses originate, were exempted from the payment of stamp duties.

Decision no. 79 of January 16, 2014 issued by the Superior Council of Magistracy on the amendment and
supplementation of the Internal Regulations of courts of law by the Resolution of the Plenary Session of the Superior Council of Magistracy no. 387/2005 was published in the Official Gazette of Romania Part I, no. 45 of January 22, 2014. Prior to the adoption of such decision, it was set forth that, in civil matters, the court clerk is to deliver to the parties or, as the case may be, to other persons provided by the law, a copy of the decision promptly after being drafted and signed. According to the new provisions, the court clerk will deliver to the parties or, as the case may be, to other persons provided by the law, a copy of the decision, within no more than 3 days as of its drafting and signing.

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News in Laws Monthly Legal Newsletter February 2014

employment legislative retrospective


Amendment of the regulations on asylum in Romania
Government Ordinance no. 1 of January 22, 2014 for amending Law no. 122/2006 on asylum in Romania and Government Ordinance no. 44/2004 on social integration of foreign citizens who acquired a form of protection or a right of residence in Romania, as well as of the citizens of the EU Member States and of the European Economic Area, was published in the Official Gazette of Romania, Part I, no. 63 of January 24, 2014. The new regulation amends the legal provisions related to asylum in Romania, including:

The amendment of existing concepts such: form of protection - defined as the international or provisional protection granted by the Romanian state; applicant or asylum seeker - defined as the foreign citizen or the stateless person who manifested his/her will to obtain international protection in Romania, as long as the asylum procedure in relation to his/her application was not completed or the addition of new concepts such as beneficiary of international protection defined as the foreign citizen or the stateless person whose status of refugee was acknowledged or to whom subsidiary protection was granted, pursuant to the provisions of this law or refugee defined as the foreign citizen or the stateless person who meets the conditions in the Convention relating to the status of refugees, signed in Geneva on July 28, 1951, hereinafter referred to as the Geneva Convention, to which Romania acceded under Law no. 46/1991; The addition of a new applicable principle contemplating the situation of vulnerable persons or of persons with special needs; The addition of new rights granted following the acknowledgment of the status of refugee or the granting of subsidiary protection: the right to have access to acquiring a home and the right to benefit from equal treatment with the Romanian citizens; The regulation of access to education of beneficiaries - minors - of international protection, the introduction of new cases of exclusion from the application of the law or the introduction of provisions related to protection within the country of origin.

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News in Laws Monthly Legal Newsletter February 2014

insolvency legislative retrospective


The entry into force of the new criminal and criminal procedure codes also made changes to the
insolvency law applicable as of February 1, 2014. Therefore, Article 81 of Law no. 255/2013 for enforcing Law no. 135/2010 on the Criminal Procedure Code and for amending and supplementing certain normative acts containing criminal procedural provisions, sets forth two major amendments of the provisions of Articles 36 and 53 of Law no. 85/2006 on insolvency proceedings, the impact of which we will be further reviewing below. If prior to such amendments, the insolvency law provided that, as of the initiation date of the procedure, all judicial, extrajudicial actions or enforcement measures for the recovery of receivables against the debtor or its assets were suspended as of right, the new amendments introduce an exception, i.e. actions exercised within criminal proceedings. Therefore, the trial of civil actions within criminal proceedings will no longer be suspended pursuant to the new Article 36 of the Insolvency Law thus amended. The amendment of Article 53, which regulates the legal regime of assets disposed of within insolvency proceedings by the official receiver/liquidator, may cause the procedures for capitalizing/liquidating the assets of a company in insolvency to enter a deadlock, if provisional or protective measures were established in relation to such assets within criminal proceedings. If until now, the insolvency law provided that the assets disposed of by the official receiver/liquidator, during the exercise of its duties thereunder, are acquired free from any encumbrances, such as mortgages, security interests or liens, of any kind, or preventive measures, including preventive measures within criminal proceedings, under the new criminal procedural regulations, the specific established provisional and preventive measures constitute an exception. In the light of the new provisions, in order to capitalize/liquidate a companys assets on which a preventive seizure was established, the receiver/liquidator must make all efforts to either obtain a release from seizure, or convince the potential buyers of such assets to acquire them with such encumbrance. As a final note, the new Criminal Code implicitly annuls Articles 143 and 144 of Law no. 85/2006, regulating within its content the offences of simple bankruptcy Article 240 of the Criminal Code, fraudulent bankruptcy Article 241 of the Criminal Code and fraudulent management Article 242 of the Criminal Code. If, as concerns bankruptcy related offences, the new Criminal Code took the regulation from the insolvency law, including as concerns applied sanctions, in the case of fraudulent management, the sanctions were reduced, the maximum imprisonment sentence being of 7 years, as opposed to 12 years according to the previous regulation. The law enforcing these new codes also introduces a new case of suspension of the capacity of insolvency practitioner, by amending Article 36 of Government Emergency Ordinance no. 86/2006 on the organization of the activity of insolvency practitioners, i.e.: if criminal proceedings were initiated or an indictment was ordered against an insolvency practitioner for committing an offence susceptible of harming the prestige of the profession, until the passing of a final ruling.

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News in Laws Monthly Legal Newsletter February 2014

insurance, private pensions and capital market legislative retrospective


Regulation no. 1/2014 on the control activity conducted by the Financial Supervisory Authority (ASF), the first normative act issued by ASF in 2014, was published in Official Gazette of Romania no. 61 of January 24, 2014.
The regulation applies to targeted entities and individuals which/who conduct activities/operations subject to ASF authorization/endorsement and/or supervision, in the insurance and reinsurance sector, in the financial instrument and investment sector and in the private pension system, mentioned under Article 2 (1) of Government Emergency Ordinance no. 93/2012 1 , and to trading companies to which duties specific for the private pension system were outsourced by directors, in relation to the outsourced activities, and establishes general rules based on which the ASF conduct the permanent, regular and unscheduled control activity. The regulation contains general rules on the control activity and on the procedure for performing regular and unscheduled controls, the rights and obligations of the controlled entity and of the targeted persons, the rights and obligations of the control team, as well as sanctions in the event of non-compliance by the targeted entities and persons subject to the control activity. The regulation enters into force within 30 days as of its publication in the Official Gazette, i.e. on February 24, 2014, date on which the Private Pension System Supervisory Commissions Resolution no. 4/2010 on the approval of Norm no. 3/2010 on the procedure for performing the control of the entities which conduct activities in the private pension system, is annulled. Strictly as concerns the Romanian insurance market, we mention the entry into force of Norm no. 18/2013 for amending the Norms on additional supervision of insurance/reinsurance companies which are a part of an insurance/reinsurance group (enforced by Order no. 9/2008 issued by the President of the Insurance Supervisory Commission), published in Official Gazette of Romania of January 14, 2014. Therefore, according to the new regulations, any insurance/reinsurance company whose parent company is an insurance holding, a mixed financial holding or a insurance/reinsurance company within a third state, is subject to an additional supervision in compliance with the provisions of the norm. The amendments aim at (i) exercising additional supervision and ASFs cooperation with the competent authorities from the Member States for designating the authority in charge with conducting additional supervision, in the case of insurance/reinsurance companies authorized in two or more Member States which have as a parent company the same insurance holding, insurance/reinsurance company within a third country, mixed financial holding or mixed insurance holding, (ii) calculating the solvability margin, (iii) further supervising insurance/reinsurance companies which are subsidiaries of an insurance holding, of a mixed financial holding or of an insurance/reinsurance company within a third country.

To brokers conducting financial instrument operations; to financial investment companies; to collective investment bodies; to investment management companies, insurers, reinsurers and insurance brokers, private pension system administrators, all entities, institutions, market operators and security issuers, as well as to financial operations and instruments regulated by the secondary legislation, etc.

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News in Laws Monthly Legal Newsletter February 2014

public procurement legislative retrospective


Legislative review at the level of the EU legislation
On January 15, 2014, two new directives were adopted in the plenary session of the European Parliament. These new directive will replace a series of the existing public procurement rules for entities operating in the water, energy, transport and mail services sectors, and will establish, for the first time in the European Union, a standard for the award of concession contracts.

As concerns public procurement, the European Union changed its standpoint in relation to the
procurement procedure, placing more emphasis on the best quality/price ratio, durability, environmental matters, social aspects and innovation criteria, than on the lowest price. Therefore, the compulsoriness to award a contract to the entity tendering the lowest price is to be eliminated. A new concept was introduced, i.e. innovative partnership, allowing contracting authorities and tenderers to work together to find the best solution for a call for tender from a contracting authority. In this case, the contracting authorities will not impose any solution in relation to the tendered solution.

First directive on public concessions. The newly adopted directive on the award of concession contracts
will unify even more the EU common market. The legal framework will allow small and medium enterprises to participate in international public procurement procedures and will considerably reduce the administrative burden which they are currently facing. The European Commission estimates that the new public procurement and concession rules will stimulate the European and global commerce.

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News in Laws Monthly Legal Newsletter February 2014

tax and accountancy legislative retrospective


Order no. 3883/2013 of the President of the National Agency for Fiscal Administration (ANAF) of December 24, 2013 amending the Order no. 52/2012 of the ANAF President for approving the form and
content of forms referred to in Title III of Law no. 571/2003 regarding the Fiscal Code was published in the Official Gazette of Romania no. 2 of January 6, 2014. The Order amends the model, content and filling in instructions for the following forms:

Form 200 Statement of income from Romania; Form 201 Statement of income from abroad; Form 204 Annual statement of income for associations without legal personality and entities subject to tax transparency; Form 205 Informative statement on withholding tax and gains / losses on income beneficiaries.

The amended forms will be used for declaring the income starting January 1, 2013.

Order no. 2067/2013 of the Minister of Public Finance of December 24, 2013 for the amendment and
completion of accounting regulation was published in the Official Gazette of Romania no. 6 of January 7, 2014. The Order amends mainly the accounting regulations referred to in the annex of the Order of the Minister of Public Finance no. 3055/2009 for approving the Accounting Regulations compliant with European directives. The main amendments set out by the present normative act include the following: (i) (ii) (iii) Introduction of set of accounting records applicable by the renewable energy producers who are entitled to receive green certificates issued by the transportation and system operator; The accounting of the operations of connecting users to the utility networks; Amendments brought to the chart of accounts (new accounts) or function of accounts:

New accounts and functions: 1491 Losses resulting from reorganization activities and caused by the cancellation of the titles held (A), 1495 Other losses related to own equity instruments (A), 266 Deferred green certificates (A), 507 Granted green certificates (A) and 6455 Entitys contribution to life insurance (A). Amendments of the accounts function: 438 Other personnel-related debts and claims, 645 Expenses related to insurance and social security contributions.

The amendments of the Order apply beginning with the annual financial statements, namely the accounting reporting corresponding to the financial year 2013.

Order no. 3854/2013 of December 20, 2013 for approving the model and content of form 014 Notification regarding the change of the fiscal year was published in the Official Gazette of Romania no. 10 of January 8, 2014.
The Order approves the model, content and filling in instructions for the form 014 Notification regarding the change of the fiscal year which is used by the taxpayers who opt for the modification of the fiscal year and it must be submitted to the tax authorities at least 30 calendar days before the beginning of the changed fiscal year.

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News in Laws Monthly Legal Newsletter February 2014

Order no. 3884/2013 of December 24, 2013 for approving the model and content of form 097 Notification regarding the application / termination of the use of VAT cash accounting system was published in the Official Gazette of Romania no. 10 of January 8, 2014.
The Order approves the adjustments to model, content and filling in instructions for the form 097 Notification regarding the application / termination of the use of VAT cash accounting system which were the result of changing the application of the VAT cash accounting system from mandatory to optional.

National Bank of Romanias Circular no. 1 of January 8, 2014 regarding the National Bank of Romania
reference interest rate was published in the Official Gazette of Romania no. 14 of January 9, 2014. Starting with January 9, 2014 the National Bank of Romania annual reference interest rate is of 3.75% per year.

Law no. 4/2014 of January 8, 2014 for supplementing the Government Emergency Ordinance no. 44/2008 on the economic activities carried out by authorized individuals, sole owners and family businesses was published in the Romanian Official Gazette no. 15 of January 10, 2014.
The Law brings amendments aiming at the registration/authorization process for the authorized individuals, sole owners and family businesses. Thus it is established the obligation of registering at the Trade Registry the mentions on the participation of the spouse of the sole owner/authorized individual on the process of carrying out his or her activity, as well as the possibility of paying a contribution to the public pension system, social security, as well as health contributions under the provision of the law.

Order no. 35/2014 of January 14, 2014 on amending the Order of the Minister of Public Finance no. 262/2007 for the approval of the registration forms for taxpayers was published in the Official Gazette of Romania no. 36 of January 16, 2014.
The Order amends and supplements the model and content of form 010 Statement of tax registration / Statement of specifications for legal entities, associations and other entities without legal personality and form 030 Statement of tax registration/Statement of claims for foreign natural persons, as well as the filling in instructions for such forms. Thus the regulatory document updates the permanent tax liabilities that are registered in the tax vector by excluding the tax on constructions and authorization fee/license fee for the field of betting and gaming.

Order no. 3851/2014 of January 14, 2014 on amending the Order of the Minister of Public Finance no.
262/2007 for the approval of the registration forms for taxpayers was published in the Official Gazette of Romania no. 36 of January 16, 2014. The Order amends and supplements the model and content of form 013 Statement for fiscal registration / Amending statement for non-resident taxpayers that perform activities in Romania through one or several permanent establishments.

Order no. 3853/2013 of December 20, 2013 on amending the Order no. 1.994/2012 of the ANAF President for the approval of the model and content of form 012 Notification regarding the change of the annual / quarterly system for reporting and paying the corporate income tax was published in the Official Gazette of Romania no. 41 of January 17, 2014.
The Order amends and supplements the model and content of form 012 Notification regarding the change of the annual / quarterly system for reporting and paying the corporate income tax.

Order no. 24/2014 of January 13, 2014 on the approval of the Norms regarding the establishment of the procedure and conditions for the authorization of the VAT warehouse referred to in art. 144 paragraph (1) letter a) point 8, second indent of Law. 571/2003 regarding the Fiscal Code, as well as the establishment of the Commission

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for the authorization of the VAT warehouses and their organization and operation regulation was published in the Official Gazette of Romania no. 47 of January 21, 2014. The Order approves the norms on establishing the procedure and conditions for the authorization of the VAT warehouse, the Commission for the authorization of the VAT warehouses is established and the organization and operation regulation of the Commission for the authorization of the VAT warehouses is approved. Upon entry into force of Order no. 24 on January 21, 2014 the provisions of Order no. 2219/2006 are repealed.

Order no. 59/2014 of January 2014 on amending the Order no. 3/2010 of the ANAF President for the approval of the Procedure for receiving VAT reimbursement requests paid by taxable persons established in Romania for the imports and acquisitions of goods/services performed in another member state of the European Union was published in the Official Gazette of Romania no. 68 of January 28, 2014.
The Order was issued in order to align the provisions of Order no. 3/2010 together with the amendments brought to the Fiscal Code according to which the reimbursement of the VAT is no longer conditioned by the payment of the tax for the taxable persons established in Romania who make imports and/or acquisitions of goods/services in another member state of the EU.

Order no. 93/2014 of January 21, 2014 for approving the form and content of the informative statements was
published in the Official Gazette of Romania no. 76 of January 31, 2014. The Order approves the model, content and filling in instructions of the following forms which must be submitted to the tax authorities no later than February 25 of the year following the reporting:

Form 392A Informative statement regarding the delivery of goods and the provision of services performed during the year...; Form 392B Informative statement regarding the delivery of goods, provision of services and acquisitions performed during the year...; Form 393 Informative statement regarding income obtained from of the sale of international road transport of persons with Romania as point of departure during the Year ....

Upon entry into force of Order no. 93 on January 31, 2014 the Order no. 1081/2011 of the ANAF President is repealed.

Order no. 79/2014 of January 21, 2014 on the main aspects regarding the preparation and submission of the
annual financial statements and the annual accounting reports of the economic agents to the territorial units of the Minister of Public Finance was published in the Official Gazette of Romania no. 70 of January 29, 2014.

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News in Laws Monthly Legal Newsletter February 2014

private pensions draft laws


In the field of private pensions, three draft norms were published on the official website of the Financial Supervisory Authority (ASF):

Norm regarding the accounting regulations applicable to the private pension system (proposals and comments in relation to the draft norm may be submitted at ASF until February 15, 2014); Norm regarding the storage and custody activity related to the assets of privately administered pensions funds (proposals and comments in relation to this draft may be submitted at ASF until February 21, 2014); Norm regarding the storage and custody activity related to the assets of optional pension funds (proposals and comments in relation to this draft may be submitted at ASF until February 21, 2014).

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News in Laws Monthly Legal Newsletter February 2014

public procurement draft laws


The National Authority for Regulating and Monitoring Public Procurement (ANRMAP) publishes a first draft of the Best practices guide in the public procurement sector in relation to projects financed from structural instruments.
Having as main objective the application of best practices in the public procurement sector, ANRMAP delivers to the interested persons a first draft of this Guide, which aims at representing a work instrument created through the project Support for the factors involved in the management of structural instruments in view of optimizing the public procurement system, financed by the European Regional Development Fund, through the 2007-2013 Operational Technical Support Program. The guide is structured on several chapters and targets the following subjects: the definition and classification of structural instruments; the system for managing projects financed from structural instruments; principles governing public procurement; rules on conflicts of interests, rules for drafting the tender documentation, publicity rules, special transparency rules; public procurement procedures; the award of the public procurement contract; sectorial contracts; the public procurement practice of the Court of Justice of the European Union; the method of settlement of complaints. The text of the document may be found at: http://www.anrmap.ro/poat/draft-ghid-de-bune-practici-domeniul-achizi%C8%9Biilor-publice-aferent-proiectelorfinan%C8%9Bate-din-ins

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