The object of the exceptions of unconstitutionality is the provisions of art. 2711 and art. 2712 of the Government Emergency Ordinance No. 34/2006 on the award of public procurement contracts, public works concession contracts and service concession, regarding the appeal procedure on awarding public procurement contracts, the establishment of the good conduct guarantee of the appellant, its amount, its valid period and retain of the guarantee in case the appeal is rejected by the Council or by the court.
According to the Decision, the Constitutional Court held that from those presented, good conduct guarantee has the meaning of a bail designed to ensure the appropriate and non-abusive exercise of rights, with all the procedural consequences arising from the purpose pursued by its setting.
So, if through the provisions of art. 2711 paragraph (1) of Government Emergency Ordinance No. 34/2006 it is established, for of the appellant, the obligation to submit a guarantee of good conduct “in order to protect the contracting authority from the risk of a possible inappropriate behavior” and they do not contradict the constitutional provision of free access to justice (as was retained in this Decision to paragraphs 34-37), the provisions of art. 2712 paragraph (1) and (2) no longer meet the purpose for which the guarantee of good conduct has been established, because, in case of rejection of the appeal by the National Council for Solving the Complaints or by the court, the contracting authority has the obligation to retain, ope legis, the guarantee of good conduct.
From the analysis of the criticized legal provisions, the Court notes that, rejecting the appeal, the National Council for Solving the Complaints or the court has no legal competence to decide by the decision/judgment about the fate of the guarantee of good conduct constituted in favor of the contracting authority. Withholding the amounts stipulated by the Government Emergency Ordinance No. 34/2006 by the contracting authority operates de iure, under the provisions of art. 2712 paragraph (1) and (2) following the rejection of the appeal.
As a consequence, regardless of the applicant’s procedural conduct, he is sanctioned with the loss of the guarantee deposited in accordance with the law. By the unconditional withholding of the guarantee of good conduct, the legislature ignores the presumption of good faith in the exercise of procedural rights applicable in civil matters as well as in administrative law, supposing automatically the bad faith and improper conduct of the appellant whose appeal is rejected. Thus, the Government Emergency Ordinance No. 34/2006 establishes a genuine sanction applicable to a person who, in defense of his legitimate interests, appeals the contracting authority’s deed to the National Council for Solving the Complaints or to the court, without the authority entitled in this regard to establish the unfairness of such appeals/requests/complaints.
Given the above mentioned, the Court finds that the provisions of art. 2712 paragraph (1) and (2) of the Government Emergency Ordinance No. 34/2006, which stipulates the unconditional retention of the guarantee of good conduct in case of rejection of the appeal/request/complaint, are unconstitutional because they restrict the free access to justice – art. 21 paragraph (1) of the Constitution, by discouraging the appellant to file an appeal/request/complaint, considering de plano that any rejection converts in a sanction for misconduct.
In this context, the Court finds that by unconditional withholding of this guarantee of good conduct it is affected the private property right provided by art. 44 of the Constitution, the diminishing of the assets of the authors of the complaints/requests/complaints couldn’t be a direct consequence of the exercise of a right or fundamental freedom, respectively that of a procedural right.