- Monopolistic activity composed of abuse of the dominant position in the market and anti-competitive agreements.
- Unfair competition.
- Public authorities' activities limiting competition.
The first law in Moldova that governed the issues of monopolistic and anti-competitive behavior was the Law no. 906-XII of 29 January 1992 "On the limitation of monopoly behavior and the development of competition". It first introduced the meaning of a dominant position in the market, provided for some rules designed to avoid the abuses of dominant position, etc. Though not formally annulled this law does not play a special important role in the market regulation any more since the Law on the Protection of Competition no. 1103-XIV of 30 June 2000 came into force in the end of 2000.
Basic principles of the Law on the Protection of Competition:
The Law on the Protection of Competition is a basic legal act in the Republic of Moldova laying down the rules of competition between market participants in the Republic of Moldova. Competition as such is defined by this Law as a contest between undertakings in which their independent activities efficiently limit each other's possibility to manipulate unilaterally the general conditions of goods turnover in the particular market.
Inequitable competition is defined as any actions performed by undertakings to gain unfair benefits what causes or can cause damages to other undertakings or harm their business status.
Articles 2 and 4 of the Law stipulate the principles of competition regulation in Moldova. They provide for the state to recognize fair competition as a crucial factor in developing the economy. The state implements the policy designed to ensure free entrepreneurship and protection of correct competition.
It is forbidden to use one's rights for the goal of limiting competition, abuse dominant position and break legitimate consumers' interests. The state should contribute to developing and protecting fair competition and protect undertakings and consumers from monopolistic activities and unjust competition.
The Law stipulates several types of anti-competitive activities:
These types of anti-competitive activities will be explained and considered in other posts. However, it is worth mentioning here the definition of dominant position which plays a pivotal role in competition regulations in all countries. The dominant position in the market is considered (by virtue of art. 2 of the Law) as an exclusive position of an undertaking in the goods market that enables it to influence decisively the general conditions of goods turnover in the respective market or to obstruct the access to the market for other undertakings. For a company to be declared as holding the dominant position it should have a market share of not less than 35 %. At the same time the term goods should be interpreted largely as the same art. 2 of the Law include the terms works and services into its definitions.
The main public authority created to implement the state's competition policy is the Agency for the Protection of Competition. And though the Law providing for the establishment of the Agency was adopted in 2000 it was only in 2007 when the Agency's board was approved and it started it activity.The Agency is entitled to control the functioning of the markets, their structural modifications and the creation of transnational corporations and financial and industrial groups. It carries out regulation of certain types of mergers and acquisitions and also may, under certain circumstances, lodge applications with the court for undertakings division. And it is the Agency that should intervene in cases of violations of competition regulations committed by undertakings.
Coming back to the definition of the dominant position it is necessary to mention that beside the existence of the definition in the Law on the Protection of Competition, there has not been yet approved a clear methodology for determining it. The Agency worked out the methodology and uses it, however, this methodology was not officially published as a legal act in the Official Monitor of the Republic of Moldova, and many lawyers claim it cannot have any enforceable legal power. In any case the methodology has been actively used by the Agency in order the dominant position of many companies in various markets.
There are two causes for that: insufficiency and lack of clarity of existing acts governing the rules of competition, and lack of necessary experience of the Agency, which only recently started to actively implement any competition regulations in Moldova.
Nevertheless, the situation is likely to change in the future, especially under the influence of the EC competition policy and regulations that would be implemented in the Republic of Moldova.
No. 844 of 26.07.2007
Under the Law No.264-XV of 15 July 2004 on the electronic documents and digital signatures (Monitorul Oficial of the Republic of Moldova, 2004, no.132-137, art.710) and with the purpose to ensure the creation of the integrated system of documents for the public authorities, the Government decides:
PRIME MINISTER - Vasile Talev
Under the Law No.264-XV of 15 July 2004 on the electronic documents and digital signatures (Monitorul Oficial of the Republic of Moldova, 2004, no.132-137, art.710) and with the purpose to ensure the creation of the integrated system of documents for the public authorities, the Government decides:
- The endorsement of the concept of the integrated system of electronic documents
- To appoint the State Enterprise "Center of Special Telecommunications» as an Integrated System Operator of electronic documents within public authorities, and will implement this system to ensure operation, safety, maintenance and modernization of its further.
- Establishment of the beneficiary integrated system of electronic documents of the Government's public authorities.
- Ministry of Information, together with the Security and Information Service of
- Republic of Moldova will ensure the development and implementation of the integrated system of documents electronic public authorities in accordance with the concept adopted; within a month, will develop and submit for approval an action plan on creating integrated system of electronic documents within the public authorities and emergency actions necessary to create a Government Center.
- Control over the execution of this decision is the responsibility of the Government.
PRIME MINISTER - Vasile Talev
Decision Nr. 583 of the Government of Republic of Moldova
on the preparation of educational institutions for the academic year 2013-2014
Posted: 09.08.2013 in Monitorul Oficial. 173-176 Article No.: 678
For the proper organization of the preparation of educational institutions of all levels for the academic year 2013-2014, to ensure implementation of the provisions of the Education Law No. 547-XIII of 21 July 1995 (Official Gazette of the Republic of Moldova, 1995, no. 62 -63, art.692), with subsequent amendments, Law no. 397-XV of 16 October 2003 on local public finances (Official Gazette of the Republic of Moldova, 2003, no. 248-253, art.996), as amended and supplemented, and Law no. 435-XVI of 28 December 2006 on administrative decentralization (Official Gazette of the Republic of Moldova, 2007, no. 29-31, Article 91), as amended and supplemented, the Government decides:
January. It has ministries which coordinate educational institutions and local authorities is recommended and the Executive Committee of the Autonomous Territorial Unit of Gagauzia:
1) to ensure completion by 15 August 2013, the preparatory work of educational institutions and homes under their management for the academic year 2013-2014 for this purpose using all the material, financial and human resources;
2) to provide educational institutions subordinate functionality throughout the year of study;
3) provide young professionals division employees according to educational institutions in rural areas, allowances and compensations stipulated by law;
4) to organize and coordinate the work of educational institutions to fill classes (groups), according to article 13 of the Law on Education No. 547-XIII of 21 July 1995, to ensure the rational and efficient use of public funds;
5) take reasonable steps to:
a) strict record of all children;
b) compulsory schooling for all children aged 7-16 years;
c) the organization of classes I-IV nutrition students, those from socially vulnerable families and classes V-XII students of the undergraduate institutions of Nistru river and Bender municipality under the Ministry of Education and other groups of students in accordance with the laws in force;
d) establishing exemptions in accordance with the regulations in force, the textbook rental fee for children from socially vulnerable families;
e) supplement the book of school libraries;
f) rationalizing the number of classes;
g) reorganization and optimization of institutions;
h) ensuring the transportation of students to district schools;
i) inclusion of pupils with special educational needs (creating access routes in buildings and other conditions for these children);
6) establish coordination groups structural reform in education;
7) inform the Ministry of Education, to 20 August 2013, about the preparedness of educational institutions subordinated to start the new school year.
February. Ministry of Education and Ministries which coordinate educational institutions of all levels, up to September 1, 2013:
1) shall provide methodological assistance to the educational process in the school year 2013-2014 in accordance with the regulations in force, with the basic curricula modernized edition 2010;
2) shall take reasonable steps to provide educational institutions with teachers.
Three. Ministry of Finance, the Executive Committee of the Autonomous Territorial Unit of Gagauzia, local government authorities, as the revenue collection to the respective budgets, based on contracts and registered as required and payment orders submitted by public treasuries of Ministry of Finance:
1) will provide funding for repairs of educational institutions for the new academic year, the purchase of fuel, consumption of electricity, gas and water, within the means provided for this purpose;
2) will provide funding based on standard cost per student for primary and secondary education institutions subordinate general.
April. The Ministry of Education will summarize information on training outcomes of educational institutions for the academic year 2013-2014, informing the government until August 23, 2013.
Prime Minister – Iurie Leanca
Minister of Educationb - Maia Sandu
Minister of Finances - Vyacheslav Negruţa
Chisinau, August 7, 2013.
Aiming to contribute to private investment attraction for fulfillment of projects of public interest aiming to increase quality and efficiency of services, public works and other activities of public interest and for the purpose of contributing to efficient usage of public assets and public money,
the Parliament approves the given organic law.
Article 1. The application field of the law
The present law establishes the basic principles of the public-private partnership, its forms and modalities of running it, the process of initiating and its carrying out, duties and obligations of the public and private partners.
Article 2. Basic definitions
For the purpose of the present law, the following notions are used:
public partner – any legal person under the public right (authorities) or an association of such persons which are establishing a public private partnership rapport;
private partner – any legal person under the private right or natural person or/and their associations that have become a part of public-private partnership in accordance with the law conditions;
public-private partnership - long term contract between the public and the private partners, with the purpose of making activities of public interest, that is concluded on the capacities of each partner to respectively distribute resources, risks and benefits;
public interest– any benefit, the form and value of which is determined by the decision of the public partner, which was obtained for the advantage of the public partner, persons living and/or activating on the territory of the Republic of Moldova;
bidder– any private law legal person or natural person and/or their associations that submits a bid for establishing a public-private partnership;
bid – written proposal submitted by the bidder to the public partner for initiating or establishing a public-private partnership;
MAIN PRINCIPLES OF THE PUBLIC-PRIVATE PARTNERSHIP
Article 3. The principles applied within the public-private partnerships
In this law the following principles are applied:
a) equality treatment, impartiality and non-discrimination;
f) contract autonomy;
Article 4. Equality treatment, impartiality and non-discrimination
The public partner shall ensure equal treatment for all bidders within any element or stage of the private partner's selection process. In all cases the established selection criteria of the private partner will be clear and will not carry any discrimination character.
The technical requirements should permit the equal access of bidders and shall not create unjustified obstacles nor limit the competitiveness at the competition.
Article 5. Transparency principle
Within the public-private partnership establishment process, the public partner ensures the objective selecting of the private partner, assuring at the same time the highest possible level of public information taking into account the goal, the character and the value of the public-private partnership object.
The public partner is obliged to ensure the publication of informative memo and of all documents related to the procedure of private partner's selection in the Official Monitor of the Republic of Moldova and in the Bulletin of public acquisitions. The content of other documents and information concerning the selection process of the private partner are wholly published on the web page of the Agency of Public Property under the Ministry of Economy and Trade (further named - Agency), and on other web sites as well, at the request of the public partner.
During the procedure for private partner's selection, the public partner ensures the access of all bidders to the same information, notwithstanding whether it considers it to be relevant for the process of bids' preparation or for the participation to the selecting procedure, as well as to the information regarding the conditions and the criteria for private partner's selection.
The meetings of the commission for private partner's selection are public, and the results of the selection process shall be made public through the publication in the Official Monitor of the Republic of Moldova and on the web site of the Agency.
Article 6. Proportionality principle
Within the process for establishing and carrying out the public-private partnership, the public partner is entitled to undertake or to request the private partner to carry out only the actions that:
result in achieving the goal of the public-private partnership or the achievement of the obligations to which the private partner has committed itself;
are necessary for and are related to the public-private partnership object;
taking into account the goal and the consequences are comparable with the public-private partnership object importance;
limit or have a negative impact upon the private partner in the least possible way.
Whenever the public partner is violating unilaterally the obligations assumed within the public-private partnership, the private partner is entitled to request for the compensation of all caused damages including the missed income.
The recovery of compensation of damages caused to the private partner will be paid from the budget account of the public partner.
Article 7. Equilibrium principle
The public-private partnership should be based on a balance between the obligations and the benefits of the public and private partners.
Risks' distribution between the public and private partners is made in accordance with the provisions of the contract concluded between them, which stipulates every type of risk involved, and each party's share of it. In all cases the private partner, notwithstanding the public-private partnership form, shall assume itself at least a part of the commercial risk.
In case when the private partner refuses to assume itself at least a part of the commercial risk notwithstanding its nature or the provisions of any law or normative act, the rapport would not be considered a public-private partnership.
Article 8. Competitiveness principle
During the private partner's selection process, the public partner is not entitled to limit somehow the competition among the bidders.
Within the procedure of selecting the private partner, shall be prohibited any simultaneous and independent participation of bidding legal entities and their branches.
In all cases the number of invited bidders should take into consideration the necessity to ensure real competition.
Article 9. Principle of contract autonomy
Whenever the law does not provides otherwise, the public-private partnership parties are entitled to determine freely their own obligations and rights, set by the contract.
Article 10. Cooperation principle
The public partner grants assistance to the private partner during the process of obtaining permissions, authorizations and other documents related to the fulfillment of the public-private partnership that are provided for by the legislation in force or the contract.
The public partner is not entitled to refuse under any reasons provided for by the law the issuance of permissions, authorizations and other documents related to the fulfillment of the public-private partnership initiated by itself, in cases when the issuance of such documents is given by the legislation in force.
PUBLIC AUTHORITIES' COMPETENCES IN PUBLIC-PRIVATE PARTNERSHIP FIELD
Article 11. Government competence
Matters under Government's competence:
approval of the list of goods under state and central public administration authorities' ownership, as well as the list of works and services having national public interest, suggested for the public-private partnership;
approval of objectives of public-private partnership of national interest, and of the general requirements regarding the selection of private partner, as well as of the conditions for the public-private partnership;
approval of policy documents regarding the public-private partnership development;
approval of the set of standard documents (samples of requests, offers, informative notes, etc.), as well as standard procedures for ensuring the public-private partnership functioning;
appointment of the public authority to conclude the contracts with the private partners in case of public-private partnerships initiated by the Government or the central public administration authorities.
Article 12. Ministry of Economy and Trade competence
Matters under Ministry's of Economy and Trade competence:
a) elaboration of policy documents regarding the public-private partnership development;
b) elaboration of modification proposals and filling in the legislative and normative acts regarding public-private partnerships;
c) elaboration and presentation to the Government for adoption of the drafts of normative acts necessary for execution of the given law;
d) exercising the control over the Agency.
Article 13. Ministry of Finance competence
Matters under Ministry's of Finance competence:
a) examination of the issues regarding the participation of the state budget at the implementation of public-private partnership projects, initiated and approved by the Government;
b) monitoring the implementation process by the public partner of the expenses from the state budget for the implementation of public-private partnership projects of national interest.
Article 14. Agency competence
Matters under Agency's competence:
coordination of the initiation and carrying out the public-private partnerships at the national level;
identification of the objectives of the public-private partnership projects of the national level and elaboration of the general requirements regarding the selection of the private partner, as well as the elaboration of the conditions of public-private partnerships;
development and enforcement of the standard documentation regarding the procedures for private partners' selection, dissemination of best practices and recommendations in the field of public-private partnership fulfillment;
monitoring, evaluation and control of the way the public partners are complying with the selection procedures of the private partners, to the carrying out of the public-private partnerships;
grating the public and private partners assistance necessary for the present law enforcement;
registration and publication of informative memos and documents related to the procedures for private partners' selection;
keeping track of public-private partnerships and of risks related to the fulfillment of each of the public-private partnership;
free of charge granting upon request coming from any person of consultations in the field of public-private partnership and organizing public partners' personnel training;
identification of barriers and shortcomings for the efficient implementation of public-private partnerships, annual submission to the Government and to the public of the statistical reports and analysis regarding the public-private partnership projects;;
identification of potential public-private partnerships based on the information sent by the public partners and facilitation of contacts between the public partners and the potential private partners;
requesting from the competent bodies any information necessary for the fulfillment of its own duties;
(2) As to exercise thefunctions stipulated in paragraph (1), the Agency will contract , upon the case, independent experts.
Article 15. Local public administration authorities' competence
Matters under local or rayon (upon case) councils' competence:
approval of list of goods under the territorial administrative units' ownership, as well as list of goods and services with public local interest suggested for public-private partnership;
approval of objectives of the public-private partnership and general requirements regarding the private partner's selection and of public-private partnership conditions;
approval of tariffs for communal public services in accordance with the Law on communal public services.
appointment of the members of private partner's selection commission
Maters under mayor's or rayon president's competence:
signature of public-private partnership contracts;
assurance of the monitoring and control for public-private partnership projects' fulfillment under the scope of the respective territorial administrative unit..
Article 16. The National Committee for public-private partnership
National Committee for Private Public Partnership (hereinafter referred to as the Committee) under the Government of the Republic of Moldova, is a functional structure with general competence, it is not a legal entity. It has the purpose of assessing state policies in public-private partnership field, of defining the priorities and strategies for public-private partnership field in the Republic of Moldova.
The list of Committee's members, as well as the regulation of its activity shall be approved by the Government.
OBJECT OF PUBLIC-PRIVATE PARTNERSHIP FULFILLMENT.
CONTRACTUAL FORMS AND SCHEMES OF ITS FULFILLMENT
Article 17. Public-private partnership object
(1) Public-private partnership is based on a cooperation between the public and private partner, having the goal to increase the efficiency of public patrimony, in which every partner undertakes concrete risks and responsibilities.
(2) The public-private partnership object can refer to any good, work, public service or any function carried out by the public partner except for those directly prohibited by the law.
(3) The public-private partnership can be set up on the basis of infrastructure objects and/or existing facilities or it is based on setting up new goods and/or public utility facilities.
Article 18. The main forms for public-private partnership fulfillment
(1) The public-private partnership shall be carried out via the following forms:
service provision/fulfillment contract;
fiduciary administration contract;
memorandum of association.
(2) The service provision/works fulfillment contract as a legal form for public-private partnership fulfillment represents a civil contract concluded on competition basis between the public and the private partners for the purpose of rendering communal public services, undertaking paid-works for capital repairing and servicing of infrastructure objects, as well as of other objects of public-private partnership, keeping track of resources' consumption and submitting invoices to consumers.
(3) The fiduciary administration contract as a legal form for public-private partnership fulfillment represents a civil contract concluded on competition basis between the public and the private partners for the purpose of ensuring a good management of public property based on performance criteria established under the contract. Within the fiduciary administration contract, the public partner passes over to the private partner the responsibility for management risks and the risks related to the assurance of system functioning, in case the law does not provide for otherwise.
(4) The renting/leasing contract as a legal form for public-private partnership fulfillment represents a civil contract concluded on competition basis between the public and the private partners for the purpose of passing over public property goods for temporary possession and usage. The private partner is held responsible for the usage in accordance with good's destination and for the collecting of payments for the rendered services and carried out works. The price of the contract is established by the parties, but it cannot be less than the minimum amount of rent set in the Law regarding the State Budget.
(5) The concession contract as a legal form for public private partnership fulfillment represents a contract concluded in conformity with the legislation on concessions.
(6) For the purpose of establishing a public-private partnership rapport, the public and the private partners can get associated under the umbrella of a civil society without establishing a legal entity, or by setting up trading companies based on joint capital (public-private). Appointment of the private partner will be carried out by contest. The public-private partnership under the form of a trading company with public-private capital can be set up also by public partner's selling of a quota from the nominal share capital of the trading company.
(7) The public private partnership can be carries out also via other forms that are not prohibited by law.
(8) Upon the mentioned contracts in the present article are applied the stipulations of the Civil Code.
(9) The relation between the public-private partnership is established only on the basis of a contest, regardless of its fulfillment contractual form.
Article 19. Implementation schemes for public-private partnership contracts
(1) Depending on the level of private partner's involvement, there can be defined the implementation schemes for the public-private partnership contracts:
design – build – operation (DBO) – a project though which the building and operation of the public-private partnership object are passed over to the private partner for a period not exceeding 50 years. The public-private partnership project can be funded integrally by the private partner. Whenever the term of the contract concluded with the public partner expires, the public-private partnership object is transferred free of charge to the public partner in good, operation shape free of any obligations and fees;
build - operation - renewal (BOR) – a project through which the private partner commits itself to fund the building of the public-private partnership object, as well as all the costs related to its maintenance for a period of time not exceeding 50 years. The private partner is allowed to collect, in accordance with the provisions of the legislation in force, the adequate tariffs for the usage of the public good for a determined period of time. Whenever the contract term expires, the public-private partnership object is transferred free of charge to the public partner in good, operation shape free of any obligations and fees;
build - operation - transfer (BOT) – a project through which the private partner commits itself to build, as well as to finance, operate and maintain the public good. The investor is allowed to collect tariffs for the usage so as to recover its investment and to cover the maintenance costs, as well as to obtain a reasonable profit. Whenever the contract term expires, the public-private partnership object is transferred free of charge to the public authority in good, operation shape free of any obligations and fees;
build – transfer – operation (BTO) – a project through which the private partner commits itself to build a good which is passed over into public partner's ownership immediately after finalizing the construction, and the public partner at its turn passes it over to the private partner for usage;
leasing - development - operation (LDO) – a project through which the private partner gets for temporary usage, or for temporary ownership and usage a public good, committing itself to pay its price in installments during a period of time not exceeding 50 years. The public partner gets the right to obtain incomes from services provided and gets the good in its ownership whenever pays integrally the price set for the good.
rehabilitation - operation - transfer (ROT) – a contract through which the public good is transferred to the private partner who commits itself to rehabilitate, operate and maintain the public good for a period not exceeding 50 years. Whenever the contract term expires, the public-private partnership object is transferred free of charge to the public partner in good, operation shape free of any obligations and fees.
(2) Public-private partnership may also be implemented through other types and schemes which are not explicitly banned by law.
Article 20. Specific conditions for the contract forms over public-private partnership fulfillment
Regardless of the form of public-private partnership fulfillment, the contracts for public-private partnership shall at least contain the following:
parties' rights and obligations, and namely:
private partner's obligation regarding the establishment and re-building of the public-private partnership object;
partner's obligation regarding the reparation of the public-private partnership object, in case when this fact is included in the list of public partner's requirements or it was assumed by the private partner at the stage of private partner's selection competition;
private partner's obligation regarding the maintenance, in accordance with the legislation in force, of the facilities meant for some categories of the population;
public partner's obligation regarding the co-funding of the public-private partnership objects;
description (technical-economical characteristics) of the public-private partnership object;
contract term and the stages for the public-private partnership fulfillment, the volume of public and private partners' investments;
the term for giving into operation the public-private partnership object, upon the case;
rules regarding the way to use the land under public partner's ownership;
data regarding the volume of goods that are to be produced, of works that are to be carried out, of services that are to be rendered, as well as data on their quality, upon the case;
the size of the payment for public-private partnership object usage, as well as the payment form, term and procedure;
clauses on risks' distribution;
j) the modality and the procedure for handing back the public-private partnership object when the public-private partnership term expires, upon the case;
k) clause on recovery/compensation on damages; liability upon failure to meet the obligations; regarding with the resolution, termination and/or abolishment of the contract, upon the case:
l) performance criteria in case of the fiduciary administration contract;
Depending on the specific character of the public-private partnership, the contract can provide for other clauses mutually agreed by the parties.
Article 21. Intellectual property obtained as a result of the public private partnership fulfillment
The intellectual property obtained as a result of the public private partnership fulfillment belongs to the private partner, as stipulated in the contract.
CONTROL OVER THE PUBLIC-PRIVATE PARTNERSHIP FULFILLMENT
Article 22. Control over the public-private partnership fulfillment
The public partner is performing the control over the way the public-private partnership is carried out, including the appointment of an independent auditor.
The private partner is obliged to ensure free access for the public partner to the public-private partnership object, as well as to all the information and documents related to the public-private partnership fulfillment.
Any breach of contractual clauses as well as any deviations identified as a result of the control performed in accordance with the provisions stipulated under paragraphs (1) and (2) from the given article shall be removed immediately or within the period of time agreed in written by the public and the private partners.
Control over the fulfillment of public private partnership could be done by the state controlling agencies in compliance with the provisions set forth by the effective legislation.
Article 23. Public-private partnership parties' responsibility
(1) The private partner is responsible for the fulfillment of the undertaken obligations within the public private partnership. In the case the public private partnership are based on the construction and reconstruction of infrastructure and/or of the existing facilities, the private partner is responsible for the quality of the public-private partnership object building or re-building, including for the observance of the requirements set for the project documentation, technical documentation and technical regulation.
(2) In case when one of the parties does not observe the obligations it has committed to or in case of incapacity to fulfill these obligations, the other party is entitled to ask for contract cancellation with prior notification of at least 3 months.
(3) The parties are responsible for the unilateral changing of the conditions of public-private partnership fulfillment.Amendment of public-private partnership fulfillment from public partner behalf leads to compensation of damages caused to the private partner by making reimbursement payments.
Article 24.Access to information
The private partner shall present upon any person's request under conditions and pursuant to procedures envisaged by the legislation granting access to information any information related to the fulfillment of the public-private partnership, as well as any data regarding its tasks and competences, rights and obligations of its consumers and clients, except the official information with restricted access, private information and information that represent a state or commercial secret.
(2) The public partner does not have the right to disclose confidential information about the private partner. The type and the character of such information are to be established by the parties.
INITIATION AND CEASING OF PUBLIC-PRIVATE PARTNERSHIP. PRIVATE PARTNER SELECTION PROCEDURE
Article 25. Procedure for public-private partnership initiation
The public-private partnership initiation and the private partner selection procedure include the following stages:
a) Public partner's identification of the public-private partnership object;
b) Carrying out feasibility study by Public partner, consultative group of experts or a person appointed by such so as to demonstrate the timeliness of the public-private partnership initiation; the feasibility study should include the technical and economic justification of public-private partnership project, as well as the main characteristics, the technical-economic indicators of public-private partnership and the risks' identification and analysis (political, financial and economic risks, risk of performance, environmental risk);
c) Approbation of the feasibility study by the Agency;
d) Public partner's development of the documentation necessary for the carrying out of the private partner selection competition, which shall include the following data:
- description of the public-private partnership object;
- feasibility study and the information regarding the way for its development;
- conditions of the public-private partnership fulfillment;
- the model of contract of the public private partnership
e) Public partner's appointment of the members for the private partner selection commission;
f) Publication in the Official Monitor of the Republic of Moldova and in the Bulletin of Acquisitions of an informative memo regarding the carrying out of the private partner selection competition; the data mentioned in point number 3 under the present article should be annexed to the given informative memo.
g) Submitting for publishing or publishing the integral content of documentation from letter d) on the Agency's web page.
g) Receiving of bids and their examination.
h) Taking the decision regarding the appointment of the private partner or regarding the rejection of all received bids.
Article 26. Informative memo
The informative memo is valid for at least 60 days since the day of its publication in the Official Monitor of the Republic of Moldova and shall contain the following data:
an indication of the fact that the memo constitutes an intention to establish a rapport of public-private partnership, as well as its objective;
public partner's name;
description of object, indication of object's geographical placement and the goal for the public-private partnership establishment;
public-private partnership duration;
information regarding the private partner selection procedures;
information regarding the modality to obtain the competition documentation;
address and deadline for submitting the bids;
requirements set for bidders and data to be included in the bid;
information regarding the criteria for selecting the best bid and/or the criteria applied in case of competitive dialogue;
j) information regarding the place and the date for bids' examination;
k) information regarding the term in which the bidders are informed about the results of the competition;
l) information regarding the modality for risks' division;
m) information regarding the performance indicators and evaluation criteria.
Upon public partner's decision and depending on the public-private partnership object, the informative memo can include also some other data besides the data listed in paragraph (1).
Starting with the day the informative memo is published in the Official Monitor of the Republic of Moldova, the public partner allows all persons to access the documentation of the private partner selection competition.
Article 27. Commission for private partner selection
For the purpose of carrying out the private partner selection procedure, the public partner sets up a commission for private partner selection for every object suggested for the public-private partnership. The commission should have an impair number of natural persons, but not less than 5 persons and it should include at least one specialist in economy, one specialist in legal issues and one representative of the Agency and a specialist in the field in which the public private partnership is initiated. The Commission is led by a chairman appointed by the public partner.
Upon the commission's members are applied on a unitary basis the stipulations of the Law regarding the conflict of interests.
The commission for private partner selection fulfills the following functions:
receives the applications for competition participation;
makes available for the competition participants the relevant documentation and explains the way for filling in the respective documentation;
defines or verifies criteria of selecting private partnership;
receives the bids submitted by the bidders and examines them;
appoints the competition winner and informs in written form the competition participants about the results;
sends for publication in the Official Monitor of the Republic of Moldova the information regarding the results of the private partner selection procedure;
The sittings of the Commission for private partner selection are deliberative in case it is attended by at least 2/3 of its members. The decisions of the commission are approved by the simple majority of votes out of the total number of Commission members. Each member of the Commission is entitled to one single vote.
The results of the Commission for private partner selection sittings are entered in the minutes that have to be signed by all Commission members attending the meeting.
The participants to the competition, the persons from the leadership of the legal entity submitting the participation application for the competition and the affiliated persons cannot be members of the Commission for private partner selection.
Article 28. Requirements of the bids
For the purpose of taking part in the competition, the bidder submits to the tender Commission the bid that shall include the following:
bidder's name or bidder's name and surname, home address or headquarter address;
experience of the bidder in the field of the proposed public private partnership fulfillment;
description of the perspective for public-private partnership object development, respectively description of services and works;
bidder's confirmation of its own abilities to carry out activity within public-private partnership framework and of the presented documents' veracity;
technical and financial offer for the implementation of the public private partnership project;
data on the foreseen quality of goods, works or services, upon the case;
information regarding the stages for public-private partnership project fulfillment and full description of works planned to be carried out at each stage;
requirements for the guarantees submitted from state's or public partner's behalf;
upon the case, the information regarding the tariffs intended to be applied by the candidate.
The bids are submitted to the private partner selection Commission at the address indicated in the informative memo, in Moldovan language in a sealed envelope.
The bids are registered in the way they were received in the register of the private partner selection commission, indicating also the date and time when the bid was received.
The bids received and registered after the deadline indicated in the tender advertising are not admitted to the competition and are sent back to the bidders without being opened.
The Commission for private partner selection ensures the confidentiality of the received data.
Article 29. Bids' evaluation
In a period not exceeding 30 days since the informative memo's expiration time, the Commission for private partner selection examines the submitted bids.
The submitted bids are evaluated in accordance with the criteria stipulated in the informative memo; each member of the commission presents to the Chairman of the Commission his/her substantiated opinion about every bid in writing bearing in mind its correspondence to each of the established criteria.
In case the contract is attributed with the most favorable bid from the economic point of view, the selection commission of the private partner (tender commission) is performing the evaluation of bids by using various criteria related to the object of public acquisition contract, such as: quality, price, technical value, esthetic and functional characters, environment characteristics, operating costs, cost recovery, after sale services and technical assistance, delivery date and the delivery or execution terms.
After examining all the received bids, the Commission prepares the report on received bids' assessment and takes the decision regarding the winner or the rejection of all bids.
The bids that have not won of other bidders participating at the tender and the attached documents to the bids are stored during 3 years in the archive of the public partner, after what these are destroyed.
The participants at the tender whose bids have been rejected, are entitled to contest the commission's decision within 15 days from the publication in the Monitorul Oficial of the Republic of Moldova of the information regarding the selection of the private partner.
The legal contest mentioned in paragraph (6) is examined by the commission within 30 days by adopting the decision in favor or rejecting the legal contest, later informing the solicitor about the decision. The solicitor can appeal to the administrative court, if the rejecting of the decision or the misinformation has not been performed within the above established term.
Article 30. Concluding the public-private partnership contract
After choosing the best bid, in a period not exceeding 30 days since the day the respective decision was taken, the Commission for private partner selection develops the draft contract which contains data envisaged in Article 20 of the present law and sends it to the winning bidder.
The draft contract is negotiated in a term of maximum 30 calendar days since the day it was received by the winning bidder.
In case when by the end of the period indicated under paragraph (2) the winning bidder refuses to sign the contract, the Commission for private partner selection is entitled to appoint as a winner the bidder that was ranked immediately after the first winner according to the evaluation results.
Article 31. Termination of public-private partnership
The public-private partnership comes to an end when:
the term of the contract concluded between the public and the private partners expires;
based on the agreement between the public and the private partners;
in other cases provided for by the law or the contract.
(2) In case of the public-private partnership termination due to contract term expiration, the private partner shall restitute to the public partner the goods free of any fees on free of charge basis.
(3) In case of public-private partnership termination, the private partner is obliged to ensure the continuity of activity or service provision under the conditions stipulated in the contract up till the moment the respective activity or service is taken over by the public partner.
(4) In case when the private partner notices the existence of some causes or the occurrence of some events that might induce the impossibility of activities' fulfillment or the public interest services' provision, it should notify immediately the public partner about this fact so as to take measures necessary to ensure the continuity of the activity or the service.
Article 32. State Register of public-private partnership contracts
(1) For the purpose of ensuring the record of documents and information regarding the concluded public-private partnership contracts, a copy of the contract signed with the private partner is sent to the Agency so as to be registered in the state register for keeping record of PPP contracts.
(2) The register covers data and information regarding contract object contract fulfillment, contract duration, terms for investments fulfillment, payment terms for royalty, environment obligations and other information related to the public-private partnership carrying out.
GUARANTEES, RISKS AND THE MODALITY OF SOLVING THE LITIGATIONS IN PUBLIC-PRIVATE PARTNERSHIP
Article 33. Guarantees for private partner
(1) In case when during public private partnership contract execution are adopted any legislative and/or normative acts that will worsen the situation of the private partner, in such a way that the latter is deprived of its rights stipulated in the concluded contract, the parties can modify the conditions of the contract as to ensure property interests of the private partner that became in force at the date of concluding the contract
(2) The stipulations of paragraph (1) of this article are not applied in case there are introduced any changes in the text of technical regulations and normative acts, that regulate the rapports on underground resources, environmental protection and health protection of citizens.
Article 34. Guarantees for the public partner
In cases directly provided for by the law or the contract, the private partner shall submit a guarantee for public-private partnership object usage; the guarantee form is established by the parties.
The private partner shall submit the public partner a guarantee in a term of 90 days since the day the public-private partnership initiation contract was signed.
The private partner, till the integral fulfillment of the contract of public private partnership, is not entitled, without the agreement of the public partner, to dispose, pledge or give away in any other way the object of the public private partnership.
Article 35. Risks and their distribution
During the feasibility study carrying out, the public partner shall identify the risks related to the public-private partnership fulfillment.
The main types of risks and the modality for their distribution are approved by the Agency. The means of distributing the financial risks are approved by the Ministry of Economy and Trade.
Article 36. Means of solving of litigations between the parties
(1) In case of litigation the parties will carry out all measures for solving this litigation in an amiable way.
(2) The parties can use the mediation or arbitration as a modality of solving the litigations occurred in the process of implementation of the public private partnership.
FINAL AND TRANSITORY PROVISIONS
The given law enters into force in a period of 3 months since the day of its publication.
In a term of 6 months since the day the law was published, the Government shall:
present to the Parliament the proposal for adjusting the legislation in line with the given law;
adjust its normative acts in line with the given law;
ensure the development and approval of the normative acts necessary for the enforcement of the given law.
(3) The contracts concluded before the date the law entered into force are not to be recorded by the Agency, in conformity with art. 32.
The Parliament adopts the present organic Law. With a view to protecting the rights and freedoms of the individual, the fundamentals of the constitutional regime, and to ensuring the integrity and security of the Republic of Moldova, the present Law establishes the legal and organizational framework for combating extremist activity and the responsibility for conducting such an activity.
Article 1. Principal Terms
In the context of the present Law, the principal terms employed have the following meanings:
extremist activity (extremism):
a) activity of a public or religious association, mass media establishment or other organization, or of a physical entity with the aim of planning, organizing, preparing, or implementing actions with the purpose of:
- forcible change (overthrow) of the constitutional regime and violation of the integrity of the Republic of Moldova;
- undermining the security of the Republic of Moldova;
- usurpation of state authority or official power;
- organization of illegal armed units;
- terrorist activity;
- incitement to racial, national, and religious hatred, as well as to social hatred, through violence or call to violence;
- disgrace to the national dignity;
- incitement to mass disorders, to hooliganism or vandalism acts, on motives of ideological, political, racial, national or religious hatred or hostility, as well as on motives of hatred or hostility toward a social group;
- propagation of exclusiveness, superiority or inferiority of citizens according to their religious affiliation, or depending on their race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property, or social origin.
b) propagation and public display of nazi attributes or symbols, or similar attributes or symbols that can be confounded with the nazi attributes or symbols;
c) financing or contributing in any other way to the implementation of aforementioned actions, including through provision of financial means, real estate, didactic, polygraphic, and logistic resources, telephone, fax, and other types of communication means, as well as information services;
d) calling in public to conducting aforementioned actions;
extremist organization - a public or religious organization, mass media establishment, or other organization against which a final court ruling is issued on the cessation or suspension of activity on motives of conducting extremist activity, under the present Law;
materials of extremist nature - documents or other information, including anonymous information for the public, calling to extremist activity, providing arguments or justifying the necessity of extremist activity, or justifying the practice of committing war crimes, or other crimes related to the partial or total extermination of an ethnic, social, racial, national or religious group.
Article 2. Basic Principles of Combating Extremist Activity
The combating of extremist activity is based on the following principles:
a) recognition, respect, and protection of the human rights and freedoms, as well as of the legitimate interests of the organizations;
d) ensuring the security of the Republic of Moldova;
e) priorities of counter-extremism measures;
f) cooperation of the State with the public or religious associations, mass media or other organizations, and physical entities in the combating of extremist activity;
g) inevitability of punishment for the conducting of extremist activity.
Article 3. Principal Directions in the Combating of Extremist Activity
The counter-extremism activities shall be performed on the following principal directions:
a) adopting prophylactic measures as to prevent the extremist activity, including the identification and elimination of reasons and conditions encouraging extremist activity;
b) detection, prevention, and termination of the extremist activities conducted by the public and religious associations, by mass media, and other organizations and physical entities.
Article 4. The Subjects Empowered to Combat Extremist Activity
Central and local public authorities shall participate in the combating of extremist activity in the limits of their competencies.
Article 5. Prophylactics (Prevention) of the Extremist Activity
With a view to combating extremist activity, the central and local public authorities shall implement, in the limits of their competencies, and as a priority, prophylactic measures, including educational and propaganda measures, aimed at preventing the extremist activity.
Article 6. Responsibility of a Public or Religious Association or Other Organization for Conducting Extremist Activity
(1) The creation and activity of public and religious associations, as well as of other organizations, the objectives of which involve extremist activity, are prohibited in the Republic of Moldova.
(2) In case if actions denoting extremism are ascertained in the activity of a public or religious association or other organization, including in the activity of at least one of its territorial or other subdivisions, the organization shall be warned in written form about the inadmissibility of conducting such actions, with the indication of concrete reasons for the warning, including the violations committed. In case if measures to remove the committed violations are possible, the warning shall also indicate the term for the implementation of such measures, which shall be one month from the date of warning.
(3) The warning of the public or religious association or other organization shall be issued by the General Prosecutor or his Deputy or by the respective prosecutor from his subordination or his deputy or by the Ministry of Justice or the State Agency on Churches and Religious Organizations.
(4) The warning may be challenged in court, according to the established procedure.
(5) If the warning has not been challenged in court, according to the established procedures, or has not been ruled as illegal by the court, and if the respective public or religious association or organization or one of its territorial or other subdivisions has not removed the irregularities which generated the warning in the term provided, or if in the course of 12 months from the date of the warning new actions denoting the existence of signs of extremism have been ascertained, on the basis of the claim of the General Prosecutor or his Deputy or the respective prosecutor from his subordination or his deputy or of the Ministry of Justice or the State Agency on Churches and Religious Organizations, the court shall issue the ruling on the cessation or suspension for a period of up to one year of the activity of the public or religious association or organization.
(6) In case if the court ruled, on the basis of the present Law, for the cessation or suspension of activity of the public or religious association or organization, the activity of its territorial or other subdivisions shall be terminated or suspended as well.
Article 7. Responsibility of a Mass Media Establishment for the Dissemination of Materials of Extremist Nature and for Conducting Extremist Activity
(1) Dissemination through mass media of materials of extremist nature and conducting by mass media of extremist activity is prohibited in the Republic of Moldova.
(2) In case if a mass-media establishment disseminates materials of extremist nature, or actions denoting extremism are ascertained in its activity, the state organ that registered this mass media establishment or the General Prosecutor or his Deputy or the respective prosecutor from his subordination or his deputy shall issue a written warning to the founder and (or) the editorial board (editor-in-chief) of this mass media establishment about the inadmissibility of such actions or activity, with the indication of concrete reasons for the warning, including the irregularities committed. In case if measures to remove the committed violations are possible, the warning shall also stipulate the term for the implementation of such measures, which shall be of up to one month from the date of warning.
(3) The warning may be challenged in court, according to the established procedure.
(4) If the warning has not been challenged in court, according to the established procedures, or has not been ruled as illegal by the court, and if the irregularities which generated the warning have not been removed in the term provided, or if in the course of 12 months from the date of the warning new actions denoting the existence of signs of extremism have been ascertained in the activity of the mass media establishment, on the basis of the claim of the state organ that registered this mass media establishment or of the General Prosecutor or his Deputy or the respective prosecutor from his subordination or his deputy, the court shall issue the ruling on the cessation or suspension for a period of up to one year of the activity of the mass media establishment.
(1)With the aim of non-admitting the continuation of dissemination of the materials of extremist nature, the court may suspend the selling of the respective edition of the publication or the circulation of audio-video tapes of the respective program or the launching of the respective audio-visual program, according to the provided procedure, in order to implement measures supporting the action.
(2) The court decision provides grounds for the confiscation of the unsold part of the circulation of the mass media production, containing materials of extremist nature from the storage facilities, from the retail or wholesale shops.
Article 8. Inadmissibility to Use Public Telecommunication Networks for Conducting
(1) The use of public telecommunication networks for conducting extremist activity is prohibited.
(2) If the public telecommunication networks are used for conducting extremist activity, measures provided by the present Law shall be applied, taking into account the particulars of relations in the field of telecommunications, regulated by the legislation.
Article 9. Combating the Dissemination of Materials of Extremist Nature
(1) Publishing (directing) or dissemination (broadcast) of printed, audio-visual or other materials of extremist nature is prohibited in the Republic of Moldova.
(2) The extremist nature of the materials is to be established by the court, upon the petition of the prosecutor.
(3) The court decision on the extremist nature of the information material provides grounds for the confiscation of the unsold part of the circulation.
(4) If in the course of 12 months the organization publishes twice materials of extremist nature, the court shall rule on the termination of its editorial activity.
Article 10. The Record of Materials of Extremist Nature
(1) The Ministry of Justice keeps a record of materials of extremist nature.
(2) The copy of the court decision on the extremist nature of the information material shall be sent to the Ministry of Justice, which shall issue an order on including the respective material in the record of materials of extremist nature.
(3) The order concerning the introduction of the material into the record of materials of extremist nature shall be published in the Official Monitor of the Republic of Moldova and in the national mass media.
(4) The order concerning the introduction of the material into the record of materials of extremist nature may be challenged in court, according to the established procedure.
(5) Dissemination of the materials included in the record of materials of extremist nature on the territory of the Republic of Moldova is prohibited.
(6) The persons responsible for the preparation, dissemination or illegal storage with the purpose of subsequent dissemination of the aforementioned materials shall be punished under administrative or criminal law.
Article 11. Responsibility of an Official Person for Conducting Extremist Activity
(1) Statements on the necessity, admissibility, possibility, or opportunity to conduct extremist activities by an official person, in public or while exercising his/her function, or with the indication of the position held, as well as lack of actions by the official person as to combat extremism in the framework of his/her competencies are subject to liability according to the law.
(2) State competent bodies and the hierarchally superior official persons are obliged to take urgent measures to punish the persons that committed the actions provided in para. (1).
Article 12. Responsibility of the Citizens of the Republic of Moldova, of Foreign Citizens, and Stateless Persons for Conducting Extremist Activity
(1) For conducting extremist activities, the citizens of the Republic of Moldova, foreign citizens, and stateless persons are liable under criminal, administrative, and civil law, according to the procedure established by the legislation.
(2) In order to ensure State and public security, on the basis and in accordance with the law, the person that has participated in the conduct of extremist activity may be limited, by a court decision, in the access to functions in the public service, contract military service, law enforcement bodies, educational institutions and non-state investigation-protection services, for a period of up to five years.
(3) In case if the leader or a member of the public or religious association or other organization makes a public statement calling to the conduct of extremist activity, without mentioning it being his/her personal opinion, and in case if there is a final court ruling on this person's offense of extremist nature, the respective public or religious association or organization is obliged to express in public its disagreement on the statements or actions of this person, within a brief timeframe. If the respective public or religious association or organization does not make such a statement, this may be interpreted as a fact denoting signs of extremism in its activity.
Article 13. Inadmissibility to Conduct Extremist Activity During Assemblies
(1) It is not permitted to conduct extremist activity during assemblies. The organizer of the assembly is responsible for complying with the provisions of the Law on Organization and Conducting of Assemblies and other normative acts on the non-admittance of extremist activity and its timely combating.
(2) Involvement of extremist organizations and their logos or attributes, as well as dissemination of materials of extremist nature are not permitted during assemblies.
(3) In case circumstances provided in para. (2) are identified, the organizer of the assembly or other person responsible for its conducting is obliged to take immediate actions as to eliminate the mentioned irregularities. Non-observance of these obligations shall cause the suspension of the assembly on the request of law enforcement authorities and to the liability under law of the organizer of the assembly or other person responsible for conducting the assembly.
Article 14. International Cooperation in Combating Extremism
(1) The activity of foreign public or religious associations or other organizations and their structural subdivisions, recognized as extremist in accordance with the acts of the international law and the legislation of the Republic of Moldova is prohibited in the Republic of Moldova.
(2) If a final court ruling on the cessation or suspension of activity of a foreign organization is in place, the competent state organ of the Republic of Moldova is obliged to announce, within ten days, the diplomatic representation or consular institution of the respective state in the Republic of Moldova about the cessation of activity of this organization on the territory of the Republic of Moldova, or about the suspension of its activity, and its consequences.
(3) In accordance with the international treaties to which the Republic of Moldova is a party, the Republic of Moldova shall cooperate in the field of anti-extremism with foreign states, with law enforcement and special services of these states, as well as with the international organizations fighting extremism.
Article 15. Final and Intermediary Provisions
(1) Within one month, the Government shall submit to the Parliament proposals on adjusting the current legislation to the present law.
A new ‘anti-propaganda’ law, similar to those recently enacted in Russia, was discussed and adopted away from public scrutiny and entered into force on 12 July. Politicians specifically sought to avoid debating the bill in public.
Moldovan flagMoldova’s Contravention Code now forbids the “distribution of public information [...] aimed at the propagation of prostitution, paedophilia, pornography or of any other relations than those related to marriage or family”.
The Code will punish the above with fines of up to 8,000 Leu (€ 480), and a possible suspension of activities ranging from three months to a year.
Uncharacteristically for Moldova, the bill did not benefit from a public consultation, and civil society wasn’t informed of the discussions.
Similar laws exist in Russia (at the federal level as well as in ten regions), Lithuania, and are debated in Ukraine.
Last month, the European Commission for Democracy through Law explained ‘anti-propaganda laws’ breached the European Convention on Human Rights, which is legally binding on Moldova.
In May 2012, the European Parliament had also specifically told Moldova to back away from adopting such legislation.
Monica Macovei MEP, Co-Chair of the EU-Moldova Parliamentary Cooperation Committee, reacted: “It is unfortunate that Moldova would adopt a law containing homophobic provisions, especially in secret. I hope the Moldovan judiciary will strike it down, in line with Moldova’s international human rights obligations and the EU Charter on Fundamental Rights.”
Marije Cornelissen MEP, Member of the LGBT Intergroup, added: “This isn’t the Moldova I know, which can be tolerant and accepting. Recently the government made progress by annulling similar regional laws in order to comply with human rights standards.”
“I hope this law will be annulled soon as well. If it isn’t, it could cast a long shadow over Moldova’s visa liberalisation proces with the EU.”