D5.1 HANDBOOK ADDRESSED TO DECISION MAKERS & PUBLIC ADMINISTRATIONS WITH RECOMMENDATIONS TO IMPROVE SHP CONCESSION PRACTICES IN SEE COUNTRIES WORK PACKAGE 5 – COMMON STRATEGIES TO IMPROVE SHP IMPLEMENTATION Final Version Date 24.05.2011
B. Popa (POLI-B), R. Magureanu (POLI-B), S. Šantl (UL), D. Kozelj (UL), G. Rak (UL), A. Skroza (UL), F. Steinman (UL), G. Zenz (TUG), G. Harb (TUG), I. Saccardo (ARPAV), D. Gasparetto (ARPAV), M. Cesca (ARPAV), Florentina Isfan (APELE), A. Moldoveanu (APELE), O. Gabor (APELE), A.T. Lazarine (APELE), I. Florescu (APELE), I. Tanase (APELE), C. Florescu (APELE), ANESER S.A. (SERRES)
INDEX
1. PREFACE...... - 4 -
2. CONCESSION PRACTICES RELATED TO WATER USES WITH FOCUS ON HYDROPOWER...... - 4 -
2.1. EUROPEAN LEGISLATION RELEVANT TO COMMUNITY POLICY FOR WATER...... - 6 -
2.2. THE EBRD CORE PRINCIPLES FOR A MODERN CONCESSIONS LAW (MCL) ...... - 8 -
3. CONCESSION PRACTICES RELATED TO WATER USES WITH FOCUS ON HYDROPOWER IN PP COUNTRIES (HPP AND SHP)...... - 15 -
3.1. CONCESSION PROCEDURES IN ROMANIA...... - 22 -
3.2. COMMENTS ON ARTICLES IN ROMANIA...... - 46 -
3.3. CONCESSION PROCEDURES IN ITALY ...... - 63 -
3.4. COMMENTS ON ARTICLES IN ITALY ...... - 74 -
3.5. CONCESSION PROCESS IN AUSTRIA ...... - 78 -
3.6. LEGAL ASPECTS IN SLOVENIA ...... - 90 - 3.6.1. Basic procedure for HP implementation...... - 90 - 3.6.1.1. Conditions and process for water concession granting for hydropower water use...... - 91 - 3.6.1.2. Spatial Planning...... - 93 - 3.6.1.3. Design and construction...... - 94 - 3.6.1.4. Operation and electricity production ...... - 95 - 3.6.1.5. Supervision...... - 96 - 3.6.2. Detailed introduction to the regulations...... - 96 - 3.6.2.1. Waters Act (WA) ...... - 96 - 3.6.2.2. Environment protection act (EPA-1) ...... - 99 - 3.6.2.3. Nature conservation act (NCA) ...... - 100 - 3.6.2.4. Freshwater fishery act (FFA) ...... - 101 - 3.6.2.5. Spatial planning act...... - 101 - 3.6.2.6. Construction act (ZGO-1)...... - 102 - 3.6.2.7. Act on physical assets of the state, regions and municipalities ...... - 102 - 3.6.2.8. Energy act ...... - 102 - 3.7. LEGAL ASPECTS IN GREECE ...... - 104 -
4. IDENTIFICATION OF WEAK POINTS...... - 107 -
4.1. IDENTIFICATION OF WEAK POINTS IN ROMANIA ...... - 107 -
4.2. IDENTIFICATION OF WEAK POINTS IN ITALY ...... - 107 -
4.3. IMPACT OF THE WFD ON SHP IN AUSTRIA ...... - 109 -
4.4. MAIN PROBLEMS IN SLOVENIA ...... - 112 -
4.5. MAIN PROBLEMS IN GREECE ...... - 112 -
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5. RECOMMENDATIONS TO IMPROVE CONCESSION PRACTICES IN PP COUNTRIES...... - 115 -
5.1. RECOMMENDATIONS FOR IMPROVING CONCESSION PRACTICES IN ROMANIA...... - 115 -
5.2. RECOMMENDATIONS FOR IMPROVING CONCESSION PRACTICES IN ITALY ...... - 115 -
5.3. ACTIONS FOR SMALL HYDROPOWER-SUPPORTS IN AUSTRIA ...... - 116 -
5.4. SUGGESTION FOR IMPROVING PRACTICE IN GREECE...... - 117 -
6. CONCLUSIONS ...... - 118 -
7. REFERENCES ...... - 119 -
Figure summary FIGURE 1 – SMALL HYDRO-POWER TOTALS FOR EXISTING UNCHANGED, REVITALIZED (INCOMPLETE) AND NEW SMALL HYDROPOWER PLANTS ON THE KEY DATE 12.31.2008 (ÖKOSTROMBERICHT 2009, E-CONTROL) ...... - 79 - FIGURE 2 – STEPS TO THE ENVIRONMENTAL IMPACT STATEMENT (KNOBLAUCH, 2006, MODIFIED) ...... - 87 - FIGURE 3 – FLOW-CHART OF PROCEDURE: UVP PROCEDURE AS OPPOSED TO SIMPLIFIED PROCEDURE (KNOBLAUCH, 2006, MODIFIED) ...... - 88 - FIGURE 4 – BASIC PROCESS OF HYDROPOWER WATER USE IN SLOVENIA...... - 91 - FIGURE 5 – PROCUREMENT PROCESS FOR CONCESSION GRANTING...... - 93 - FIGURE 6 – CHART OF THE PROCESS OF RENTING...... - 105 - FIGURE 7 – OLD HPP “ALM BEI VORCHDORF/LAMBACH”, BY NOW REHABILITATED (BMLFUW, 2005)...... - 111 -
Table summary TABLE 1 – EUROPEAN WATER LEGISLATION...... - 7 - TABLE 2 – SPECIFIC ROMANIAN LEGISLATION ON PUBLIC ADMINISTRATION ...... - 15 - TABLE 3 – SPECIFIC ROMANIAN LEGISLATION ON REORGANIZATION OF AUTONOMOUS ADMINISTRATIONS...... - 16 - TABLE 4 – HARMONIZATION OF THE ROMANIAN LEGISLATION WITH THE EU ENVIRONMENTAL LEGISLATION ...... - 18 - TABLE 5 – HARMONIZATION OF THE ROMANIAN LEGISLATION WITH THE EUROPEAN LEGISLATION REGARDING WATER QUALITY ...... - 20 - TABLE 6 – KIND OF WORKS WHICH REQUIRE THE SCREENING PROCEDURE...... - 66 - TABLE 7 – KIND OF WORKS WHICH REQUIRE DIRECTLY THE EIA...... - 66 - TABLE 8 – THRESHOLD VALUES TO VERIFY THE APPLICABILITY OF THE SCREENING PROCEDURE IN THE VENETO REGION...... - 70 - TABLE 9 – APPROVED SMALL HYDRO POWER TOTALS BY CATEGORY, AS OF 31.12.2008 (ÖKOSTROMBERICHT 2009, E- CONTROL) ...... - 79 - TABLE 10 – EXPECTED ENERGY LOSSES CONCERNING MIF AT SHP IN AUSTRIA (SOURCE: STIGLER ET AL., 2005) ..... - 110 -
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1. Preface
The present work is an outcome of the project “SEE HYDROPOWER, targeted to improve water resource management for a growing renewable energy production”, in the frame of the South-East-Europe Transnational Cooperation Programme, co-funded by the European Regional Development Fund (www.seehydropower.eu).
The project is based on the European Directive on the promotion of Electricity from Renewable Energy Sources respect to the Kyoto protocol targets, that aims to establish an overall binding target of 20% share of renewable energy sources in energy consumption to be achieved by each Member State, as well as binding national targets by 2020 in line with the overall EU target of 20%. Objectives of the SEE HYDROPOWER deal with the promotion of hydro energy production in SEE countries, by the optimization of water resource exploitation, in a compatible way with other water users following environmental friendly approaches. Therefore, it gives a strong contribution to the integration between the Water Frame and the RES-e Directives.
Main activities of the project concerns the definition of policies, methodologies and tools for a better water & hydropower planning and management; the establishment of common criteria for preserving water bodies; to assess strategies to improve hydropower implementation, such as small hydropower; testing studies in pilot catchments of partner countries; promotion and dissemination of project outcomes among target groups all over the SEE Region countries.
In particular, here is presented the report D5.1 - Handbook addressed to decision makers & public administrations with recommendations to improve SHP concession practices in SEE countries, which is part of the Work Package 5 - Common strategies to improve SHP implementation.
2. Concession practices related to water uses with focus on hydropower Romania
Introduction
A concession is a business operated under a contract or license associated with a degree of exclusivity in business within a certain geographical area. For example, sports arenas or public parks may have concession stands. Many department stores contain numerous concessions operated by other retailers. Similarly, public services such as water supply may be operated as concessions.
The owner of the concession — the concessionaire — pays either a fixed sum or a percentage of revenue to the entity with the ability to assign exclusive rights for an area or facility. A concession may involve the transfer to the concessionaire of the right to use some existing infrastructure required to carry out a business (such as a water supply system in a city); in some cases, such as mining, it may involve merely the transfer of exclusive or non-
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exclusive easements.
In the case of a public service concession, a private company enters into an agreement with the government to have the exclusive right to operate, maintain and carry out investment in a public utility (such as a water supply system) for a given number of years. Other forms of contracts between public and private entities, namely lease contract and management contract (in the water sector often called by the French term affermage), are closely related but differ from a concession in the rights of the operator and its remuneration. A lease gives a company the right to operate and maintain a public utility, but investment remains the responsibility of the public. Under a management contract the operator will collect the revenue only on behalf of the government and will in turn be paid an agreed fee.
Some countries, such as Chile, Canada and the United Kingdom, have built toll highways on a concession basis (e.g. M6 Toll in the UK). Concessions have also been used in London in construction of extensions to the Docklands Light Railway system.
Public-private partnerships (PPPs) and private finance initiatives (PFIs) may be considered similar to concessions.
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2.1. European legislation relevant to community policy for water
European specific legislation Document Document No. Date of issue Details Type concerning the quality required of surface water June 16, Directive 440 intended for the abstraction of drinking water in 1975 the Member States (75/440/EEC) December 8, concerning the quality of bathing water Directive 160 1975 (76/160/EEC) April 2, Directive 409 on the conservation of wild birds (79/409/EEC) 1976 on pollution caused by certain dangerous May 4, Directive 464 substances discharged into the aquatic 1976 environment of the Community (76/464/EEC) on the quality of fresh waters needing protection July 18, Directive 659 or improvement in order to support fish life 1978 (78/659/EEC) concerning the methods of measurement and October 9, frequencies of sampling and analysis of surface Directive 869 1979 water intended for the abstraction of drinking water in the Member States (79/869/EEC) concerning protection of groundwater against December 17, Directive 68 pollution caused by certain dangerous substances 1979 (80/68/EEC) on limit values and quality objectives for mercury Directive 176 March 22, 1982 discharges by the chloral-alkali electrolysis industry (82/176/EEC) on limit values and quality objectives for mercury March 8, Directive 156 discharges by sectors other than the chore-alkali 1984 electrolysis (84/156/EEC) on the assessment of the effects of certain public June 27, Directive 337 and private projects on the environmental 1985 (85/337/EEC) on the protection of the environmental, and in June 12, Directive 278 particular of the soil, when sewage sludge is used 1986 in agriculture (86/278/EEC) on limit values and quality objectives for June 12, discharges of certain dangerous substances Directive 280 1986 included in List I of the Annex to the Directive 76/464/EEC (86/280/EEC) amending Annex II to the Directive 86/280/EEC on June 16, limit values and quality objectives for discharges Directive 347 1988 of certain dangerous substances listed in List I of Annex to the Directive 76/464/EEC (88/347/EEC) amending Annex II to the Directive 86/280/EEC on limit values and quality objectives for discharges July 22, Directive 415 of certain dangerous substances included in List I 1990 of the Annex to the Directive 76/464/EEC (90/415/EEC) concerning urban waste-water treatment May 21, Directive 271 (91/271/EEC) 1991
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July 15, concerning the placing of plant protection products Directive 414 1991 on the market concerning the protection of waters against December 12, Directive 676 pollution caused by nitrates from agricultural 1991 sources (91/676/EEC) May 21, on conservation of natural habitats and of wild Directive 43 1992 fauna and flora September 24, concerning integrated pollution prevention and Directive 61 1996 control December 9, on the control of major-accident hazards involving Directive 82 1996 dangerous substances November 3, on the quality of water intended for human Directive 83 1998 consumption Directive 31 April 26, 1999 on the landfills of waste October 23, establishing a framework for Community action in Directive 60 2000 the field of water policy December 4, Directive 76 on the incineration of wastes 2000 amending the Council Directive 96/82/EC on the December 16, Directive 105 control of major-accident hazards involving 2003 dangerous substances on pollution caused by certain dangerous February 15, substances discharged into the aquatic Directive 11 2006 environment of the Community (codified version) (Text with EEA relevance) April 5, Directive 12 on waste (Text with EEA relevance) 2006 October 23, on the assessment and management of flood Directive 60 2007 risks Table 1 – European water legislation
European regulations Regulation 1080/2006, concerning the European Regional Development Fund
Regulation 397/2009, amending Regulation 1080/2006
Regulation 1081/2006, concerning the European Social Fund
Regulation 396/2009, amending Regulation 1081/2006
Regulation 1082/2006, concerning the European groupings of territorial cooperation
Regulation 1083/2006, general provisions on the Structural Instruments
Regulation 284/2009, amending Regulation 1083/2006
Regulation 1084/2006, concerning the Cohesion Fund
Regulation 1828/2006, on the implementation of Regulation 1083/2006
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Lisbon Treaty
To respond to the problems faced by EU, Member States launched the Lisbon Strategy, on the occasion of the European Council meeting on 23-24 March 2000. The stated goal of this strategy is to revive the EU policies, amid two major challenges affecting the economy and society: globalization and fast development of information society.
Globalization involves increasing competition in all economic sectors. Development of information society requires a radical reform of education system in Europe and providing lifelong learning for the European citizens. The objective of Lisbon Strategy aims the transformation of EU into a more attractive place to invest and work, promoting knowledge and innovation and job creation at higher and better wages.
For 2007-2013 financial programming periods, Member States were required allocation of certain amounts of structural funds they are about to receive to finance projects related to the Lisbon Strategy objectives fulfillment. In this context, Romania has developed - in line with the European Commission recommendations and the other Member States practice - National Reform Programme for Re-launched Lisbon Strategy.
2.2. The EBRD core principles for a modern concessions law (MCL)
The EBRD Core Principles for a Modern Concessions Law (the Core Principles) underpin the EBRD’s design of legal reform projects in the area of concessions/Public Private Partnership (PPP). The purpose of the Core Principles is to identify and promote sound modern principles of concessions laws in the EBRD’s countries of operations. By promoting clearness, fairness, stability, predictability and flexibility among their major objectives, the Core Principles aim to protect both investors and the public sector from unfair treatment and abuses. The Core Principles are based on maximum transparency of procedures, thus ensuring benefits to all parties.
The Core Principles are based on key internationally accepted standards and best practices, as refined and tested on the Legal Transition Team’s (LTT) technical assistance projects, including regional studies, sector surveys and assessments1 , as well as LTT’s participation in international standard setting initiatives (such as the UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects).
The following international texts were used in drafting the Core Principles:
. UNIDO Guidelines for Infrastructure Development through Build Operate Transfer (BOT) Projects, 1996 (UNIDO BOT Guidelines);
. OECD Basic Elements of a Law on Concession Agreements, 1999-2000;
. UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects, 2000 (UNCITRAL Legislative Guide);
. UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects, 2003 (UNCITRAL Model Legislative Provisions).
1 See in particular EBRD Concession Law Assessment at http://www.ebrd.com/country/sector/law/concess/assess/index.htm
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. The following regional texts were used in drafting the Core Principles:
. European Commission Interpretive Communication on Concessions under Community Law (2000/C 121/02);
. European Commission Guidelines for Successful Public-Private Partnerships, 2003;
. European Commission Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions, 2004.
The UNCITRAL Legislative Guide and the UNCITRAL Legislative Provisions are the primary sources used for drafting the Core Principles as they closely relate to concession- type projects and provide guidance as to the effective legal framework aimed at fostering an attractive investment environment for privately financed projects. The other source documents served mostly as general guidelines as they provide information on the nature, structure and characteristics of PPPs2 (including the definition of “concessions”3) and on the legislative and regulatory framework for their effective implementation4.
Principle 1 A Modern Concession Law (MCL) should be based on a clear policy for Private Sector Participation Explanation: Like a sound legislative framework, clear government policy/strategy for the Private Sector Participation (PSP) is important for signaling the commitment of the government to develop a stable and attractive investment environment and to reflect its efforts in improving the legal environment. Such strategy should generally be developed on the level of a government approved document.
Sources: UNIDO BOT Guidelines stress the importance of adopting the government PSP strategy in order to communicate the commitment of the state to promote favorable political, legal and regulatory conditions and thus enhance the interest of potential investors5.
Principle 2 MCL should create a sound legislative foundation for concession Explanation: Effective participation of the private sector in the development of infrastructure and effective functioning of the concessions regime requires an enabling legal framework. An enabling legislative foundation is important for establishing roles and responsibilities of all parties and estimating a so-called country risk by potential investors. The concession legal framework may be represented by either a specific concession law or a comprehensive set of sector-specific laws that foster a clear, fair, predictable and stable legal environment for concession projects.
Sources: The importance of an enabling legal framework for concession projects is reflected in Recommendation 1 of the UNCITRAL Legislative Guide.6 The
2 European Commission Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions (2004); European Commission 3 European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02), Part 2.4. 4 European Commission Guidelines for Successful Public-Private Partnerships (2003); European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02). 5 UNIDO BOT Guidelines, Chapter 4, pp. 42-43. 6 UNCITRAL Legislative Guide, Recommendation 1.
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Recommendation emphasizes the importance of solid concession legislation not only for clarity and stability of the investment regime but also for signaling a political commitment of the state.7
Principle 3 MCL should provide clarity of rules Explanation: The concession law should clearly define the scope of its application, i.e. the legal relations to which the law extends. Such clarity is essential for the predictability of the concession regime, for the stability and validity of the concession agreement as well as for the prevention of ungrounded arbitrary actions by the contracting authorities. With this purpose, the MCL should provide an exhaustive definition of “concession”, a list of sectors concerned, contracting authorities, and eligible concessionaires.
Sources: Principle 3 is largely based on Recommendations 2-5 of the UNCITRAL Legislative Guide. The Recommendations stress the importance of identifying in the concession law the bodies/officials at various levels of government empowered to act as 8 9 contracting authorities , as well as sectors in which concessions may be awarded.
In order to ensure clarity with regard to the object of concession, the Guide appeals to the importance of “interpreting” the meaning of “concession” in the law, i.e. its form and type/purpose (BOT, Build Own Operate (BOO), etc)10 as well as indicating the exclusivity of the right granted by concession and its geographical scope.11 For the purposes of defining “concession”, the EU Commission Interpretive Communication may proof useful as it provides definitions of the “works concession”12 and “service concession”13, as well as a generalized definition of “concessions”14. The clarity and the scope of the authorization for the procurement and implementation of concession projects are also stressed in the UNIDO BOT Guidelines15. (See also UNCITRAL Model Legislative Provisions 3, 4).
Principle 4 MCL should provide a stable and predictable concession legal framework Explanation: As a rule, privately financed projects are long-lasting. However, many different factors influencing projects may change in the course of their implementation, one of them being legislation. The risk of changing legislation may endanger the validity of the project agreement and thus the sustainability of the project itself. In order to ensure the stability of the project agreement and the parties’ capacity to carry out their rights and duties, the state should avoid frequent changes to concession-related legislation and the concession law should foresee a mandatory provision in the agreement stipulating the surviving applicability of the regime in force at the moment of agreement or other mechanisms for dealing with legal risks.
Sources: Recommendation 58 of the Legislative Guide states that concession law should
7 UNCITRAL Legislative Guide, Chapter 1, Para 10. 8 UNCITRAL Legislative Guide, Recommendation 2, Chapter 1, Para 17. 9 UNCITRAL Legislative Guide, Recommendation 4, Chapter 1, Para 18. 10 UNCITRAL Legislative Guide, Recommendation 3, Chapter 1, Para 19. 11 UNCITRAL Legislative Guide, Recommendation 5, Chapter 1, Para 20. 12 European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02), Part 2.1. 13 European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02), Part 2.2. 14 European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02), Part 2.4. 15 UNIDO BOT Guidelines, Chapter 4, p. 46.
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require the concession agreement to address the potential legal risk and set forth provisions regarding compensation for the negative consequences of legislative changes as well as mechanisms for revising the terms of the agreement following the occurrence of such changes16. The OECD Basic Elements of a Law on Concession Agreements also contain a so-called “stability clause” that is meant to protect the concessionaire from the possible changes in legislation17. (See also UNCITRAL Model Legislative Provisions 39- 40).
Principle 5 MCL should promote fairness, transparency and accessibility of concession rules and procedures Explanation: This principle relates to the fairness, transparency and accessibility of the rules and procedures governing the selection of concessionaires, awarding and further implementation of a concession. Under this principle, the MCL should foresee the process which would guarantee a transparent and competitive selection process (including exceptions from competitive procedure), equal treatment of potential investors, opportunity to challenge the rules and decisions of contracting authorities and competitive rules for unsolicited proposals.
Sources used: A number of the UNCITRAL Legislative Guide recommendations have been used in drafting this principle. Specifically, Recommendations 9 and 10 of the Guide state that regulatory procedures and rules on concessions should be objective, transparent and accessible (made public)18. Moreover, Recommendation 10 also stresses the importance of having in place the procedures for a review of the regulatory decisions by an independent body19.
Fairness and transparency of the concession rules and procedures is also reflected in Recommendation 14 of the UNCITRAL Legislative Guide, which refers to the importance of guaranteeing fair competitive procedures for the selection of concessionaires20 and in Recommendation 39, which guarantees the right to apply for a review of the contracting authorities’ acts during the selection procedure21.
The UNCITRAL Legislative Guide also suggests having a procedure in place for non- competitive proposals (Recommendation 28) and unsolicited proposals (Recommendation 30-35). Principle 5 is also supported by the European Commission’s Interpretive Communication, the European Commission Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions and the OECD Basic Elements of a Law on Concession Agreements22. (See UNCITRAL Model Legislative Provision 6, 18- 23, 28).
16 UNCITRAL Legislative Guide, Recommendation 58. 17 OECD Basic Elements of a Law on Concession Agreements, 1999-2000, Art. 18. 18 UNCITRAL Legislative Guide, Chapter 1, Para 46. 19 UNCITRAL Legislative Guide, Recommendation 10, Chapter 1, Para 49. 20 UNCITRAL Legislative Guide, Recommendation 14, Chapter 3, Para 10-16. 21 UNCITRAL Legislative Guide, Recommendation 39, Chapter 3, Para 127-28. 22 European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02), Para 3.1.1. (rules for the selection of concessionaires should be made public, they should be equally applied; principle of competition should be adhered to); Para 3.1.2. (transparency of the selection rules and procedures, advertising); Para 3.2.3. (rules and decisions are available for a review).
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Principle 6 MCL should be consistent with the country’s legal system and particular laws Explanation: MCL should be consistent with the rest of the country’s legislation so as to avoid unnecessary collisions of laws and inconsistency in their application. Appropriate amendments should be made to legislative acts to ensure the coherence and consistency of the legislative base.
Sources: Recommendation 1 of UNCITRAL Legislative Guide states the importance of the conformity of the concession law to constitutional provisions, both as regards restrictions and guarantees23.
Principle 7 MCL should allow for negotiability of concession agreements Explanation: Freedom to negotiate concession agreements is important because it allows the factoring in of a greater variety of circumstances while allocating risks between the parties and thus elaborating a more creative and financially efficient approach to risk allocation. Successful implementation of this principle also requires the clear identification in the concession law of the body authorized to negotiate the agreement, implement and monitor the performance under the agreement, including the clear division of powers between central and local authorities.
Sources: According to Recommendation 2 of the UNCITRAL Legislative Guide, in order to ensure the effective negotiation and further implementation of a concession project, it is important to identify persons or offices empowered to enter into commitments at different stages of agreement negotiation24. It is also important to foresee in the concession law the proper allocation of powers between the different levels of government (central and local authorities) during the negotiation and implementation of the project25. In order to consider a wide range of factors and thus allocate risks effectively, Recommendation 12 of the UNCITRAL Legislative Guide European Commission Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions, Para 29 (transparency of the selection procedure, advertising, competition); OECD Basic Elements of a Law on Concession Agreements, Para 5.2, 6.1 (transparency of the selection process); Para 11.1 (clear regulation of non-competitive procedures).
Principle 8 MCL should allow for enforceable court or arbitral determinations Explanation: According to this principle, the MCL should ensure the possibility to protect the rights and interests of both parties under an effective system of dispute resolution (including the possibility for international arbitration and enforcement of arbitral awards). This principle is especially important for creating a more secure, predictable and attractive climate for investors.
Sources: This principle is largely based on the Recommendation 69 of the UNCITRAL Legislative Guide, which stresses the importance for the MCL law of awarding parties the freedom to agree to a dispute settlement mechanism that is regarded by them as the most
23 UNCITRAL Legislative Guide, Chapter 1, Para 7-9. 24 UNCITRAL Legislative Guide, Recommendation 2, Chapter 1, Para 17. 25 UNCITRAL Legislative Guide, Chapter 1, Para 17.
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suitable according to the nature of the project26.
Principle 9 MCL should allow for state undertakings and guarantees Explanation: This principle refers to the importance of the MCL containing provisions that allow the government a possibility to support the project financially or guarantee the contracting authority’s proper fulfillment of its obligations. Government support is often essential for increasing the level of comfort of potential investors, enhancing the attractiveness of investment as well as for supporting the execution of projects.
Sources: Recommendation 13 of the UNCITRAL Legislative Guide suggests that the MCL should contain clear provisions with regard to both the type of authorities that may provide support and the type of support provided27.
Principle 10 MCL should accommodate security interests Explanation: As a rule, only approximately 30% of a concession project is financed by the concessionaire itself. The other 70% is usually borrowed from the banks (lenders) under a security arrangement according to which the concessionaire gives to the lenders security over its rights under the concession agreement. However, in order for this security to be effective, the state should also provide an assurance that in case of the security’s enforcement, the proper procedures would allow the concession to be carried out and the lenders to “step-in” to the concession agreement28. Thus, this mechanism guarantees the continuation and sustainability of the concession project and effectiveness of the investment.
Sources: Recommendation 49 of the UNCITRAL Legislative Guide emphasizes the importance of inclusion in the MCL provisions guaranteeing the right of a concessionaire to secure any financing required for the project with a security interest in its property, pledge of shares of the project company, proceeds and receivables or other suitable security29. This principle is also supported in Article 16 of the OECD Basic Elements of a Law on Concession Agreements, which states that the concessionaire can create security over its rights to any payments and receivables under the concession agreement. (See also UNCITRAL Model Legislative Provision 35).
Terminology BOO - Build Own Operate
BOT - Build Operate Transfer
Core Principles - EBRD Core Principles for a Modern Concession Law EBRD European Bank for Reconstruction and Development LTT (Legal Transition Team)
26 UNCITRAL Legislative Guide, Recommendation 12, Chapter 2, Para 21. 27 UNCITRAL Legislative Guide, Recommendation 13 28 OECD Basic Elements of a Law on concession Agreements. Explanatory notes to Art. 16, p. 27. 29 UNCITRAL Legislative Guide, Recommendation 49.
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MCL - Modern Concession Law
OECD - Organization for Economic Development and Cooperation
PPP - Public Private Partnership
PSP - Private Sector Participation
UNCITRAL - United Nations Commission on International Trade Law
UNIDO - United Nations Industrial Development Organization
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3. Concession practices related to water uses with focus on hydropower in PP countries (HPP and SHP)
Romania
National legislation
Legislation on public and autonomous administration Document Manufacturer Date of issue Details Type local public administration law April 23, Law 215 Published in Official Gazette no. 204 of April 23, 2001 2001 Table 2 – Specific Romanian legislation on Public Administration
Document Date of Manufacturer Details Type issue the reorganization of state economic units as August 7, Law 15 autonomous administrations and companies 1990 Published in Official Gazette, Part I no. 98/08.08.1990 16 on autonomous administrations reorganization GO 30 iunie1997 Published in Official Gazette, Part I no. 125/19.06.1997 to approve Government Emergency Ordinance no. December Law 207 30/1997 on autonomous administration reorganization 12, 1997 Published in Official Gazette, Part I no. 366/18.12.1997 on certain measures for the reorganization of autonomous administrations of local interest July 2, H 360 benefiting from foreign loans from international financial 1998 organizations Published in Official Gazette, Part I no. 247/03.07.1998 Emergency Ordinance no. 79 of 05.31.2001 on strengthening financial and economic discipline and May 31, GO 79 other provisions of a financial nature 2001 Published in the Official Gazette Part I, no. 297 07/06/2001 on approval of Methodological Norms implementation for the municipal public services, the Government Emergency Ordinance no. 79/2001 on strengthening August 27, A 502 economic and financial discipline and other provisions of 2001 a financial nature Published in the Official Gazette, Part I no. 556 of 06.09.2001 on the sale of the state owned commercial premises and services under the administration of the county councils October 14, or local councils and of the autonomous administrations Law 550 2001 of local interest (The title of the Law was modified by the Sole Article, point 1 of Law no. 558/2004)
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on stimulating the restructuring, reorganization and February privatization of national companies and state-owned GO 8 27, 2003 companies, as well as autonomous administrations under the authority of local public administration on measures to reduce the arrears in the economy May 19, GO 37 Published in the Official Gazette, Part I no. 481 2004 28/05/2004 on amending the Government Emergency Ordinance no. on stimulating the restructuring, reorganization and privatization of national companies and state-owned August 19, GO 80 companies, as well as autonomous administrations 2004 under the authority of local public administration Published in Official Gazette Part I no. 791 of 08.27.2004 on amending and supplementing Government Emergency Ordinance no. on stimulating the restructuring, reorganization and privatization of national November companies and state-owned companies, as well as GO 119 24, 2004 autonomous administrations under the authority of local public administration Published in Official Gazette, Part I no. 1151 of 06/12/2004 on approving the quarterly wage goals for the year 2005 for businesses monitored under the provisions of February GD 142 Government Emergency Ordinance no. 79/2001 on 28, 2005 strengthening economic and financial discipline and other provisions of a financial nature Table 3 – Specific Romanian legislation on Reorganization of Autonomous Administrations
Public Procurement Legislation . GEO no. 19/2009 concerning the award of public procurement contracts, public works concession contracts and services concession contracts
. Law no. 337 of 17/07/2006 to approve the Government Emergency Ordinance no. 34/2006 concerning the award of public procurement contracts, the public works concession contracts and services concession contracts
. Law no. 128 of 05/05/2007 amending and supplementing Government Emergency Ordinance no. 34/2006 concerning the award of public procurement contracts, the public works concession contracts and services concession contracts
. GD. 925 of 19/07/2006 to approve the Rules to implement the provisions relating to the award of public procurement contracts of the Government Emergency Ordinance no. 34/2006 concerning the award of public procurement contracts, the public works concession contracts and services concession contracts
. Government Decision no. 1337 of 27.09.2006 on completion of Government Decision no. 925/2006 for the approval of the Rules to implement the provisions relating to the award of public procurement of the Government Emergency Ordinance no. 34/2006 concerning the award of public procurement, the public works concession contracts and services concession contracts
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. GD. 71 of 24.01.2007 for approval of the Rules to implement the provisions relating to the award of public works concession contracts and services concession provided by the Government Emergency Ordinance no. 34/2006 concerning the award of public procurement contracts, the public works concession contracts and services concession contracts
. Order NARMPP no. 155 of 02.10.2006 on approval of the Guide for awarding public procurement contracts
. Order NARMPP no. 183 of 03.11.2006 on the implementation of the provisions on advertising media contract
. GD. 1660 of 22/11/2006 for approval of the Rules to implement the provisions relating to award of public procurement contracts by electronic means of the Government Emergency Ordinance no. 34/2006 concerning the award of public procurement contracts, the public works concession contracts and services concession contracts
. GD. 525 of 30/05/2007 on the organization and functioning of the National Authority for Regulating and Monitoring of Public Procurement
. GD. 782 of June 14, 2006 for approval of the Rules of organization and functioning of the National Council of Claims Settlement
. GEO no. 74 of 29/06/2005 on the establishment of the National Authority for Regulating and Monitoring of Public Procurement
. Law no. 111 of 27/04/2006 for approval of the Government Emergency Ordinance no. 74/2005 regarding the establishment of the National Authority for Regulating and Monitoring of Public Procurement
. GEO no.30 of 12.04.2006 on the function of checking the procedural issues related to the award of public procurement contracts
. Law no. 228 of 04/07/2007 for the approval of the Government Emergency Ordinance no. 30/2006 on the function of checking the procedural issues related to the award of public procurement contracts
. GD. 942 of 19/07/2006 for the approval of the Rules to implement the Government Emergency Ordinance no. 30/2006 on the function of checking the procedural issues related to the award of public procurement contracts
. Ministry of Finance Order no. 175 of 05/02/2007 for the approval of the Operational Manual for observation and verification activities of the award of public procurement contracts, the public works concession contracts and services concession contracts – including the model and content of the forms and the documents used
Legislation on public finances . Law no. 500 of 11.07.2002 on public finances
. Law no. 314 of 08/07/2003 to amend Art. 15 of Law no. 500/2002 on public finance
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. Decision no. 28 of January 9, 2008 approving the content framework of economic and technical documentation related to public investment, and the structure and methodology for developing the general estimate for investment objectives and investments works
. GD. 1865 of 21/12/2006 to modify the value limits on the powers of approval of technical-economic documentation of the new investment objectives
. Law no. 273 of 06.29.2006 on local public finance
. GD. 1213 of 06.09.2006 on establishing the framework procedure for the environmental impact assessment for certain public and private projects
. Order no. 1187 of 16 April 2007 on amending and supplementing the Methodological Rules on the organization and management of the accounting activity for public institutions, the Chart of accounts for public institutions and its implementing instructions, approved by the Ministry of Public Finance no. 1917/2005
Harmonization of the national legislation with the EU legislation (Accession Treaty) The harmonization of the national legislation with the EU legislation is in progress and most of the EU Directives are already transposed into the Romanian legislation. The status of the harmonization is presented in the table below:
Environmental law 1 Council Directive 85/337/EEC of 27 June 1985 on the GD. 1213/2006 on establishing the assessment of effects of certain public and private framework procedure for environmental projects on the environment, corrected and amended impact assessment in certain public and by Directive 97/11/EC by Directive 2003/35/EC private projects MO no. 860/2002 on approving the Procedure for environmental impact assessment and for issuing the environmental agreement MO no. 863/2002 on approving the methodological guidelines applicable to the procedure for environmental impact assessment 2 Directive 2001/42/EC on the assessment of effects of GD. 1076/2004 on establishing a certain plans and programmes on the environment procedure of environmental assessment in certain plans and programs MO no. 117/2006 on approval of the Implementation Manual for the procedure of environmental assessment in plans and programs Table 4 – Harmonization of the Romanian legislation with the EU environmental legislation
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WATER QUALITY 1 Directive 2000/60/EC establishing a Water Law no. 107/1996 as amended under the framework for community action in the field Emergency Ordinance no. 3 of 2010 amending Law on of water policy Waters, Law no. 310/2004, Law no. 112/2006, Emergency Ordinance no. 12/2007 and Government Decision no. 948/1999 GD. 472/2000 on certain measures to protect water resources quality MO no. 662/2006 on the approval procedures and competencies for issuing permits and authorizations for water management MO no. 661/2006 on the approval of Norms on the content of the technical supporting documentation required to obtain water management permit and authorization, repealing the OM no. 277/1997 2 Directive 75/440/EEC concerning the GD. 100/2002 approving quality Standards for surface quality required of surface water intended waters for drinking water and Rules regarding for the abstraction of drinking water in the measurement methods and sampling frequencies and Member States analysis of samples from surface waters for drinking water production, modified by GD. 662/2005 and GD. 567/2006 GD. 210/2007 on amending and supplementing some laws transposing the acquis in the environmental sector 3 Directive 76/160/EEC concerning the GD. 459/2002 on the approval of quality Standards for quality of bathing water waters in natural bathing areas, amended by GD. 546/2008 on the management of bathing water quality 4 Directive 79/869/EEC on methods of GD. 100/2002 approving quality Standards for surface measurement and frequencies of sampling waters for potable water and methods of measurement and analysis of surface waters intended for and frequencies of sampling and analysis of samples from the abstraction of drinking water in the surface waters for drinking water production, modified by Member States GD. 662/2005 and GD. 567/2006 GD. 210/2007 on amending and supplementing some laws transposing the acquis in the environmental sector 5 Directive 91/271/EEC concerning urban GD 352/2005 modifying. 188/2002 on approval of Norms waste-water treatment, as amended by on terms of waste water discharge into the aquatic Directive 98/15/EC environment MO no. 662/2006 on the approval of the procedure and competencies for issuing permits and authorizations for water management GD. 210/2007 amending and supplementing certain normative acts transposing the acquis in the environmental sector MO MEWM / Ministry of Agriculture no. 344/708/2004 on the approval of the technical Norms on the protection of the environment, and in particular soils, when sewage sludge is used in agriculture, as amended by OM no. 27/2007 MO no. 661/2006 on the approval of Norms on the content of the technical supporting documentation required to obtain water management permit and authorization, repealing the OM no. 277/1997 6 Directive 98/83/EC on the quality of water Law no. 458/2002 on the quality of drinking water, intended for human consumption modified by Law no. 311/2004 GD. 974/2004 on approval of Norms for observation, sanitary inspection and monitoring of drinking water quality
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and for Health Licensing Procedure for drinking water production and distribution GD. 930/2005 on approval of special Norms on the nature and size of sanitary and hydrogeological protection zones 7 Directive 86/278/EEC on the protection of MO MEWM / Ministry of Agriculture no. 344/708/2004 on the environment, and in particular soils, the approval of the technical Norms on the protection of when sewage sludge is used in agriculture the environment, and in particular soils, when sewage amended by Directive 91/692/EC and sludge is used in agriculture, as amended by OM no. Regulation 807/2003 27/2007 8 Directive 2006/11/EC on pollution caused GD 352/2005 modifying. 188/2002 on approval of Norms by certain hazardous substances on terms of waste water discharge into the aquatic discharged into the aquatic environment of environment the Community GD. 210/2007 on amending and supplementing of certain normative acts transposing the acquis in the sector of Environmental Protection GEO no. 152/2005 on integrated pollution prevention and control approved and modified by Law no. 84/2006 MO no. 661/2006 on the approval of Norms on the content of the technical supporting documentation required to obtain water management permit and authorization, which repealed the OM no. 277/1997 MO no. 662/2006 on the approval procedure and competencies for issuing permits and authorizations for water management Table 5 – Harmonization of the Romanian legislation with the European legislation regarding water quality
Environmental policy Until the late 1960s, no European state has defined a clear environmental policy. But significant progresses in establishing a comprehensive environmental quality control system within the European Union have been made over the past 30 years. This aspect covers a wide range of issues, ranging from noise pollution, to preventing waste, chemicals, air particles, water vapours pollution or establishment of a European network for approaching environmental disasters such as oil spills or forest fires.
Summit in Paris in 1972 mentioned that more attention should be given to environmental protection in the context of economic expansion and improved living standards. The concrete result of this summit was the first development plan for environmental protection. Other annual programs and a series of directives followed the summit.
Single European Act (SEA) of 1987 is a landmark for the European environmental policy, first mentioned in a treaty of the European Community.
Maastricht Treaty of 1992 went even further than the former, giving it full status of environmental protection in the European policies.
Amsterdam Treaty of 1999 strengthened the legal basis for European policy aiming at environmental protection and promoting sustainable development in the European Union.
Currently, the EU policy regarding environmental protection is based on the idea that, setting high standards of environmental protection stimulates innovation and creates new business opportunities. Economic, social and environmental fields are closely related.
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European Union's objective is to provide an adequate level of environmental protection throughout the Union, without neglecting the local circumstances and economic constraints involved.
All environmental policy is based on the "polluter pays". The polluting source can "pay" either through investment made for growth of safety standards or by paying a fee that covers the use of polluting products, either by industry or by ordinary consumers. Payment conditions can also include the requirement to recover, recycle or destroy the products used. The Commission also proposed that illegal emissions of harmful air quality products, water or soil, illegal transportation and illegal dumping of waste and illegal trafficking of endangered species that are to be considered criminal and punishable as such. Subsequent steps to be performed are discussed.
In conclusion, one can say that environmental policy is probably one of the most difficult EU policies. While member states can enjoy the natural beauties of Europe, they must also share responsibility for acid rain, polluted water, air contaminated with chemicals and wastes discharged improperly. Extreme weather conditions have started to become more pronounced, illustrating the fact that climate change is an issue of concern to all citizens and which must be tackled at all levels of environmental policy.
Environmental policy has the following objectives: a) Short and medium term
. Minimizing adverse environmental impact, on all activities undertaken in an economically efficient manner; b) Long term
. Achievement of performance standards in the international environmental supplies;
. Compliance of all business units with valid legislation;
. Increasing environmental responsibility, improving the organizational activities of environmental protection;
. Prevention and fight against water, soil and air pollution by means of organizational and technological changes;
. Development of a system for monitoring environmental indicators;
. Extension of protection programs for flora and fauna;
. Waste management;
. Staff training and continuous improvement of environmental protection;
. Promoting international cooperation in order to finance projects using the tools established by the Kyoto Protocol.
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3.1. Concession procedures in Romania
The concession contract - general aspects
Notion of concession contract From the very beginning show that interwar Romanian doctrine was strongly influenced by French doctrine on the matter.
The Romanian legal doctrine of that period, the concession issue was addressed by two great writers on public law, namely teachers ED Tarangul and Paul Negulescu.
The first author mentioned concession defined as "the organization of public services, the administration of an individual entrusts a public service. It was grant of public service at the expense and risk or in accordance with rules established by the administration, paying itself from the fees collected from individuals, who use public service concession."
In turn, the second author mentioned concession defined as "a form of exploitation of public service in which an individual - physical or moral - takes on risks of exploitation and management of service activities in exchange for the right to charge for the rendered services” .
Among the definitions in French specialized doctrine the following are more relevant:
According to a French author a public service concession is a management of a service by a public person, the grantor, entrusts a private person, the operator, under contract with a service operation for a certain period of time, assuming duties and the right of remuneration for rendered services.
Concession, says another author, "can be defined as the process by which a public person, the grantor, entrusts a private person, the operator, under contract to make public service work for a certain determined period of time, assuming the danger or risk, being remunerated by charges levied on its beneficiaries."
As can be seen, French authors refer only to public service concession, thereby understanding, but also public works concession, which is a public service concession, which, however, the operator is not obliged to do this public service work, but he undertakes to build, at its expense, the public works necessary for the operation.
In Romanian legislation, there is a definition of the concession in Article 1, paragraph 2 of Law no.219/1998 on the concession regime.
According to this law, "The concession is a contract whereby a person called the grantor, shall transfer, for a specified period not exceeding 49 years, to another person, called the operator, acting on its own risk and liability, the right and obligation of exploitation of a public good, running an activity, or a public service in exchange for royalties.”
Based on previous statement, the Romanian law, the concession can be defined as an administrative contract by which a legal person of public law - state, county, town or village - called the grantor, shall transfer for a period of not more than 49, a natural or legal persons of private law - Romanian or foreign, called the operator, acting on its own risk and
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responsibility, the right and obligation of exploitation of a public good, running an activity or public service in exchange for royalties.
Characteristic features of the concession contract The concession contract is an administrative contract concluded between a legal person of public law, called the grantor, and a natural person or private law, Romanian or foreign, called the operator.
It covers private management of public services or public property or public works by a particular person or entity.
Execution of public work or the management of service or public good is done by individuals, at their own risk and own responsibility.
Operator, person or entity, has the right but the obligation to exploit the property, public service or public work under conditions stipulated in the specification, which is part of the concession.
Transfer of rights and correlative obligations to the concessionaire is done for a period not exceeding 49 years, which may be extended to half of its original length at the most.
Subject of concession can be contracts only public or private state, county, city, municipal property and public services and public works.
The concession contract has two distinct parts: the regulation of contract, including the terms foreseen in the specifications and the contract itself, which contains other terms set by the parties, by their consent.
Choosing the concessionaire is usually done by public tender or public auction with open auditions. Exception to the rule is the conclusion of the contract by direct negotiation procedure in cases and conditions stipulated by law.
By the end of the concession contract, there is no transmission from the grantor to grantee, the property asset, public work or for the exclusive power of public service organization. Instead, the concession by the concessionaire has the effect of transmission, as provided in the specifications, only a right of public service management or the public good, in order to make its economic growth and quality of public services.
The purpose of the concession is not only efficient public service to benefit those who will use it, but also stimulate competition between individuals in order to achieve higher quality of public works.
Right to exploit the asset, public service or work is given in exchange, the concessionaire for the benefit of the grantor of a fee.
Exceptional reasons related to national or local interest, the grantor may amend unilaterally the agreement governing the concession, after notice to the concessionaire.
Time evolution of the theory of concession contracts in the countries of Western Europe has led, for example, in France, the emergence of the idea of collaboration between the
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grantor and grantee, in order to make clear economic public goods, and the rise of quality public service delivery by recipients.
The concession is made combining two fundamental areas and apparently headers, the system: first, public service subject to the imperatives of general interest, on the other hand, the individual (person or entity) who accept public service management in personal.
Concession is, in this view, holding up two categories of interest, the benefit of those who use public services.
Classification of concession contracts Any classification of contracts involves identifying the criteria by which some of them may be grouped according to common traits that distinguish them from others and individualize them.
In the case of concession contracts, establishing criteria by which they can be classified, should take into account object, closing the way nature grantor or lessee, as well as the legal basis for its conclusion.
Classification of concession their objective criteria This group of concession contracts is done even by the legislature in Article 1 paragraph 1 of Law no. 219/1998, which provides as an object of concessions it can be public or private property that the state, county, town, village or public activities and services of national or local interest.
So according to this criterion we have:
a. Concession contracts for goods;
b. Concession contracts for public activities;
c. Public service concession contracts.
a. Concession contracts for goods can sub in turn to: concession contracts and concession contracts, public supply of private property of the state, county, city or village.
Group concession supplies are, for example, concession contracts of public land, beaches, quays or free zones (referred to in Article 2 paragraph 2 of Law lit. h) or concessions of natural resources of the economic zone sea and continental shelf (asrt.2, lit. n, Para. 2) was:
. The land can be leased, it made a clarification, because the legislature mentioned in Art. 2 lit. h paragraph 2 of the Act, only public land concession opportunity.
. Concession contracts to public activities.
Using the term "public activities" seems rather unfortunate elected by the legislature to designate a set of papers that aim and purpose of construction or upgrading of public
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interest objectives.
Moreover, the entire French doctrine in terms uses the notion of "public works concession", and not that of "public activities", which can be easily confused with that of "public service", used by the Romanian legislature. For example, the concession to build a highway or a road tunnel is intended execution of public works by the concessionaire, and not providing "a public activity." So we assume the construction of a hydroelectric build a public works.
Moreover, the concessions mentioned, the concessionaire undertakes to perform himself, and pay for public works to the operation of that objective and did not provide any public activity.
Classification of concession contracts by way of closing their By way of concluding the concession contract is appointed effective method of selection of the operator by the grantor, the procedure mandatory at birth and prior contractual rights and obligations of the parties.
According to this criterion, concession contracts may be classified into three distinct groups, namely: the concession agreement following a public auction of the concession, the concession agreement through direct negotiation and concession agreement and binding directly.
Concession contracts concluded after a public auction of the concession is, according to legislation, standard contracts, agreements typically because the legislature novel concept, the general principle of concession bidding, basic rule of choosing the concessionaire.
Instead, the concession contracts concluded through direct negotiation is exception to the bidding of the concession, it is applicable, under Article 26 of Law no.219/1998, if the public auction has not led to the appointment of a winner.
Finally, another group of concession contracts concluded consists of the direct and mandatory, as required by law.
Among them are signed concession contracts, according to Article 40 of Law no.219/1998 and covering the public or private property that the county, city, municipal, and public activities and services under the administration of companies national companies or national companies.
Conclusion of the contract of concession requirement arises, on the one hand, the need to regulate the legal basis of usage of these goods by legal persons other than the owner, and on the other hand, for financial reasons and that the need for a consideration in money their management.
Classification of concession contracts depending on the nature of the grantor One can distinguish two main groups namely contracts and concession contracts in which the grantor is a ministry or other specialized body, central public administration, or, instead, as a contract in which it has a county council, local or a local public institution.
Of course, each group could be divided into subgroups of the grantor, but we think it is still so relevant to their division.
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The reason to highlight the two major categories of concession lies, but in their different skills, competencies determined by ownership of the property or attribute of the service or activity performance - an object of the contract.
According to article 5 of Law no.219/1998 for public or private property that the state or for activities and services of national interest, have the status of awarding ministries or other bodies of central public administration.
Instead, for public or private property that the county, city, village, awarding the status of a county or local councils have, or institutions of local interest, of course, depending on the territorial jurisdiction of each.
Depending on the nature of the operator can distinguish at least two groups: dealers - individuals or legal entities - individuals or dealers, or legal novels - and dealers - natural or legal persons abroad.
Classification of concession contracts by legal criterion After the criterion of legal basis for their conclusion, concession contracts may be classified into two major groups namely: concession contracts concluded under the Law no. 219/1998 and concession contracts based on the provisions for special laws.
As I said before, the legal basis of concession contracts is not only them and the provisions of Law no.219/1998 GD nr.216/1999 implementing this law, but other special laws adopted prior to the above, but remained in force after the date of applying the new law.
Distinguish between the two groups of contracts is necessary, first, to determine the law applicable to the contract, depending on his subject, and on the other hand, as is known, whenever the special law provides it is completed with the provisions of general law.
In this vein, there are concession contracts for mines, for example, which are legal basis so special law - Law nr.61/1998 - and general law - Law no. 219/1998 - but only to the extent that the special law is silent.
Parties (subjects). Conditions of validity of concession contract As stated, rightly, Romanian legal literature "concluding contracts cannot, in fact, considering the validity of the items separated from her contract: any contract is signed in the idea of its validity. 4
According to, art. 948 Civ., Code. Conditions for the validity of the Convention are:
1. capacity to contract;
2. valid consent of the party to be bound;
3. a given object;
4. cause bid.
Before going to analyze each of the terms of validity mentioned above, we show that if
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administrative control - generally - the ability to contract terms and especially the party's valid consent to be bound, behave some specific features deriving from the quality status held by at least one party, that the legal person of public law - public authority or local.
Ability to contract As shown in the Romanian legal doctrine, the capacity to contract "involves examining both parties - individuals or legal - in terms of capacity utilization, as well as that of exercise capacity."
Consideration of the capacity to use and exercise of the operator, person or entity - no need to conduct a closer look, because they are subject to the provisions of private law.
The situation is different for the grantor.
According to, Art. 5 of the Law no.219/1998 date, the grantor may have only one legal entity of public law - the ministry, other specialized body of central public administration and local councils, county or local public institutions.
True consent of the party that undertakes Concession contracts are mutually binding contract, connection and interdependence characterized by mutual obligations of the parties.
If expression of the will of the concession contract does not require a detailed analysis, it is a natural person or private law, with very different things about the express consent of the grantor.
Specificity event of the grantor's will to contract, resulting from its special quality - a specialized body of central public administration or local or county councils or local.
By doing the analysis of the event will of the grantor believe the contract should be highlighted four aspects of this problem, namely: to express the will formalities prior to contract, its content, form of expression of the will, and vices of consent.
a. Pre-event formalities of will
As noted above, the quality of the grantor may have, according to art. 5 of Law no. 219/1998, a ministry or other specialized body of central public administration; or a county, town, village council; or local public institution.
Note therefore that in terms of their organization, and the skills to prove the concession, granters may be management bodies with single-or collegial leadership.
For concessions on certain items, activities or services of national public interest, the consent of two types of wills: one will single-member (Minister) and a will of a collegial body (government).
Forms of manifestation of these wills are order minister for the ministry and that will, the Government for the willingness of the Government.
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b. Content will of the grantor
Each legal entity of public law has a certain capacity to contract, limited by material and territorial jurisdiction as determined by law or legal act of incorporation. And therefore the content manifestation of will made in terms of a contract, must match the capacity to contract.
In the case of concession contracts, content manifestation of will of the grantor, must match the concession competence, established by Law no. 219/1998 concession or special laws.
Otherwise, the manifestation of will, although formally expressed valid, will not be able to valid legal effect and thus concluded contracts are void.
c. Form of expression of the will of the grantor of the lease
If the content of the will of the lease, as we saw, it is limited to objects of the grantor, its form of expression of the will must be in writing and subject to legal procedural formalities for the issue.
Thus, if the grantor with single-member governing body, the manifestation of the will of the lease must take the written order or decision of the Minister, in case the head of other bodies of central public administration.
d. Vices of consent
Romanian legal literature consent defects were defined as those circumstances that affect the nature of consciousness and free will to make a legal act. 6
The same author shows that the defects of consent are: error, fraud (cunning), violence and injury.
Classification of parties (subjects) A. Classification of grantor
a) After territorial jurisdiction the grantors can be:
. central public administration bodies: ministries and other bodies of central public administration;
. bodies of local government: county councils, town or village;
. local public institutions.
b) After the objective criteria of concession the grantors can be classified:
. competent grantor to lease public property or private property or services or activities of national public interest, namely the ministries and other central bodies of specialty;
. competent grantor to lease goods, services or activities of public or private property of local interest: county councils, town or village.
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B. Classification dealers
. After criterion concessionaires nature can be classified individuals and legal entities;
. After their nationality criterion concessionaires individuals and companies can be Romanian or foreign natural or legal persons.
The goods, services or public activities that may be granted by each grantor in hand, we show that, in terms of the concession, each jurisdiction is determined by public or private property that they have under management or the services or activities which is the subject or activity. Thus, by law, the foundation, each ministry or a specialized body of central public administration has set certain powers and duties which form the subject or activity. Also, by Law 215/2001 are set out powers of county, town or village, and the act of incorporation - the county council or local decision - are stated powers local public institutions. 1
Therefore, concluding the concession contract must take place with respect to law competency of the grantor. Thus, for example, a contract of concession of highways of national interest can be only one Ministry of Transport and a concession to exploit mineral deposits cans only Ministry of Industry.
Similarly, the concession of land in public ownership of local interest may be the local council in whose territory is land.
Considering that, on the one hand, goods, activities or services which may form the object of concession are different, and on the other hand that the quality setting of the grantor in connection with such goods, services or activities, is, in some cases, issues, situations could arise where a legal person of public law to sign a lease, without the concession of that quality of good, service or activity. For example, a county council concluded a concession contract of public land is not owned by a municipality and county property.
The question is, whether this contract is valid if signed and may produce legal effects?
From the very beginning show that the validity of the concession contract that is affected, for that was signed by another grantor than that required by Article 5, paragraph 1 of law no more than the county council was not a concession on that field.
Therefore, that contract must be terminated. Contract cancellation will occur, but rather towards its cancellation by cancellation, revocation or lapse of. And this because the ground that the contract void IUI and no closing date has not occurred by this time.
The literature has shown that unlike the revocation, termination or sunset, which causes a void legal act, are not concurrent with its conclusion and after this time.
It is therefore appropriate to establish which of the forms in this situation applicable nullity, nullity relative or absolute is.
The distinction between two types of invalidity, absolute and relative, three specialized legal literature has argued that what distinguishes them is the public interest, civic or on the contrary, particular interest has been protected by legal provision violated.
Is, we believe, obviously in breach of article 5, paragraph 1 of the Law on the status of the grantor, was a respected legal rules relating to general interest, universal, given that both
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the local council, and the county manages a heritage which is owned by a community: village, town or county, as legal persons under public law.
Therefore, conclude that, when signing concession contract by other granter than that relevant granted is struck by absolute nullity.
Mention that it is a void; it can be invoked by anyone, anytime, without being covered by the confirmation. Regarding the effects of absolute nullity of the contract struck, it produces no effect, as if there was, according to the Latin maxim "quod nullum east nullum efectum produce”. Therefore, the contract is dissolved with effect for both past and future, parts being made in the previous situation.
In other news, the legislature stated that public legal persons listed above have the status of the grantor "in the name of the state, county, town and village.
Therefore, ownership of the goods specified in Art. 2, Para. 2 of Law no.219/1998, goods can be granted one is state, county, town and village. The public authorities or public institutions, subject of civil legal relationship, acting in the name of the state, county, town and village.
For a more complete analysis of the quality of the grantor is, however, necessary to determine the nature of the law under which public legal persons acting "on behalf of the state, county, town and village, for public or private property or state for public or private property that the county, city or village.
If, as we showed, ownership of private property from public or national interest belongs to the state or local, county, city or municipality, ministries and other central public administration bodies and local councils or county may have only one administrative law on such property.
That is so apparent and the provisions of Law 215/2001, which art. 38, Para. 2, point. F reads as follows: "manage the public councils of village or town or private. Also, the same law provides that public or private interest is administered county by county councils.
Similarly, we think this kind of management there if ministries or other bodies of central public administration to public property or private property of the state.
Administrative law does not, however, the right holder or disposal of the property subject to law, as the device that belongs to the owner.
As that definition of concession, give by the law of concession, at art. 1, Para. 1 of the Act, the grantor and the concessionaire shall only "right and duty of running a good, an activity or public service on a specified period of 49 years" and not ownership of the property.
Therefore we believe that by conferring the quality of the grantor, the holder of ownership - state, county, town and village - has sent the owner of the administration - legal entity of public law - a power which exceeds the right of administration, namely the right to lease.
If property about public or private property, the holder of that right is the State, county, town or village, a situation somewhat different encounter to the activities of national interest or public services or locally, by law, be subject to the concession contract.
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Thus, if these can no longer speak of an "owner of property, for carrying out these activities and provide these services constitute a liability of legal persons of public law issues of the concession contract - a matter of their they being, though, and the right to perform.
Therefore, the wording of Art. 5 of the law regarding the status of the grantor "in the name of the state, county, town or village" and for public activities and services of local or national interest, it seems, from this perspective, at least unfortunate. And this is because, in concession contracts having as such activities or services, people appear as subjects of public law, the grantor in his own name and not on behalf of the state, city or village; because they have the right and legal obligation provide them.
As a consequence, we can say that in the first case, the county town or village as the owner, delegate public authority that represents the attribute or to conclude the concession contract, to be thus subject report juridical, as grantor, while in the latter legal person of public law appears as a matter of law on its own.
Delegation of tasks to be concession on behalf of the state, county, town or village is not, however, the effect of an agreement between the delegation and Delegator, but she runs right by operation of law.
Romanian legal literature has argued that civilian absolute subjective right holder (e.g. the owner of a thing) is in the civilian report as an active subject and the other part of the legal relationship, even if it is undetermined, called the passive subject.
That is, we show that if the civil contractual relationship, born of the concession grantor appears as an active subject of legal relationship, while the concessionaire or concessionaires appear as liabilities subject or subjects.
Thus, active subjects of the legal concession these legal persons of public law:
a) ministries or other bodies of central public administration;
b) county councils, local or local public institutions.
In turn, have the status of passive subjects of civil legal relationship, licensees, i.e. natural and legal persons or foreign novels are part of the concession contract.
Plurality issues concession contract In civil legal relations there are plenty of cases where one meets several topics so active and passive subjects of the same legal relationship.
That is, we think it is appropriate to be analyzed from this perspective and the concession of the legal issues.
At first glance it would seem that, after lease legal relationships is born straight, single active subject - the grantor - and one subject passive - operator.
No doubt the vast majority of legal relationships arising from a lease are legal relations simple one grantor and one grantee, as subjects of law.
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But there is possibility of birth of complex legal relationships with several active or passive subjects, born relationship by signing a lease?
In a first analysis of the text would seem not. Thus, article 1, Para. 2 of Law no.219/1998 the concession regime, the legislature defines the concession contract to be the contract by which a person called the grantor, shall, for a determined period of not more than 49 years, another person called the operator, which acts on risk and liability to the right and duty of running a good, an activity or a public service in exchange for royalties.
We have shown that, at first glance, the legal relationship of obligation is a legal relationship with one simple active subject (the grantor) and one passive subject (operator).
On further analysis we believe that there may be situations in which legal relationships arising from the concession contract and legal relationships can be complex, with one grantor and more dealers. a) plurality of active topics (several grantor)
From the outset we believe that the possibility of a plurality of active topics, so many in the same legal grantor of the concession, is excluded.
And this for the goods, activities or services covered by the concession (referred to in article 2, paragraph 2 of the Act) is administered, or is the attribution of a single public authorities or public institutions. Thus, public or private land by local interest, property city, town or village, local councils are run by local jurisdiction, which the grantor and quality.
These lands can be leased for a ministry, for example, that fall outside its competence, competence determined by law the establishment of the ministry concerned.
Similarly, local public land can be leased by local and county council together with the same contract, or in other words, the two public authorities cannot be co-grantors of the same ground.
Another example can be co-granted two ministries of the same activities as the same activity can not be in the competence of both ministries, but only one of them.
The existence of active pluralism (between grantor) of the subjects of the concession contract is prevented, removed, so the law on concessions regime, which provides in Art. 5 for each category of legal persons under public law, the scope of goods, activities or services which may grant concessions, and the enactment of their organization and operation, stating powers and duties of each one.
In conclusion, the Obligation of legal relations arising from the concession agreement, there can be only one active subject (one grantor) is therefore excluded active solidarity. b) plurality of passive subjects (the operator) within the same legal obligation
If, as we have seen, active solidarity is impossible, there is a different situation with passive solidarity (among dealers) Obligation of legal relationship, which is born by the end of the concession contract.
Remember that the Romanian legal literature, passive solidarity (between borrowers) was
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defined as "the obligation that many debtors, the creditor is entitled to require full performance of any co-debtor of the obligation benefit at issue. 84
Indeed, we believe that nothing prevents two individuals or two legal entities to participate together and win the public tender for the concession of a good or a service activity.
The concession contract will end in this case, between legal persons of public law jurisdiction, as grantor, and some natural and legal persons as concessionaires, on the other side.
Thus, nothing stops the two individuals to join together to bid the concession of land in public or private local interest, and will operate it jointly.
Similarly, nothing prevents two Romanian or foreign legal persons or other Romanian and foreign to a lease together, the construction of a highway or exploitation of mineral deposits, or other activity, product or service.
In this case, by signing the concession contract obligation is born with a single complex active subject (the grantor) and a plurality of passive subjects (concession).
Finally, we believe, from this perspective, it must be analyzed the problem of obligation divisibility, as its obligation transmission problem.
In case that we presented, the concession contract with a single granter, but with two or more dealers, another problem arises is that of divisibility or contrary indivisibility to obligations between dealers.
Thus, the conclusion of the contract of concession, the concessionaires were required by the grantor, will operate together as good or will meet together public service or activity covered by the contract.
As you can see easily, the obligation that springs from the concession contract is indivisible.
Indivisibility objectively determined, however, and indivisible nature of obligation between passive subjects of the concession contract.
A direct consequence of indivisibility obligation between dealers is that in case of breach of her, any dealers may be required by the grantor to the full performance benefits to which all were bound. Also, royalty payments made by an operator by the grantor, exempt the all concessionaires.
Spring indivisibility obligations arising from the concession contract, believed to be both the law and the contract between the parties and the contract concluded under the law, the indivisibility of nature born performances that make the obligation is called in literature, natural indivisibility.
The object of the concession contract In Specialized Romanian doctrine, there is no uniform point of view, the notion about the object of civil act and not its existence. 7
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However, to enlighten us on the subject of conventions (contracts), we consider necessary to show that, according to art. 962, Civil Code. "The purpose of conventions is that the parties or only one party is bound."
Conclusion of the concession contract creates a legal obligation, as a link between the grantor and grantee, the contract constitutes a source of obligations.
The legal relationship of obligation, specifically concession is complex, which devolves upon the grantor must complete two benefits in favor of the concessionaire, namely: a. performance to give, namely the right to consent to the transmission concession by the concessionaire and its registration in the records of real estate advertising. b. performance to make incumbent grantor, signifying its duty of teaching the operator and actually put to good mood, activity or public service concession.
Meanwhile, the report assumes that referred to the performance and duty concession to make, namely to exploit the good or perform work or public service who obliged.
Returning to the material object of the concession, we note that the legislature stipulates in art. 2, Para. 2 of Law no. 219/1998 on the regime of concessions, property, public activities and services that may be a concession, in the following areas: a. public transport; b. highways, bridges and tunnels crossing road tax; c. roads, railways, ports and civil airports; d. November hydropower construction and operation, including those in conservation; e. postal services; f. spectrum and transmission and distribution networks for telecommunications; g. economic activities related to natural and artificial water courses, water management work related to their stations and measurements installations hydrological, meteorological and water quality and fish decorations; h. public land, beaches, bays and free zones; i. transmission and distribution of electricity and heat; j. pipeline transportation networks and distribution of oil and combustible gases; k. transmission and distribution of public drinking water; l. mineral deposits and solids and fluids; m. the operation of thermal sources; n. the natural resources of the maritime economic zone and continental shelf;
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o. sports bases, recreational, entertainment, professional institutions;
p. health facilities, departments and laboratories of the structure them, and ancillary medical services;
q. economic activities related to the value of the monuments and historical sites;
r. collection, storage and recovery of waste;
s. any other goods, services or public activities not prohibited by special organic law.
From the very beginning, it is noted that the scope of goods, activities and public services that can be granted is very large and very diverse nature.
Referring to the material object of a contract generally, we show that, according to Roman legal doctrine in August, if mutually binding contracts (which category is part of the concession contract), which give rise to mutual obligations between the parties contract material object of these contracts consists of a benefit and consideration. In turn, subject to benefit a good form of the Contracting Parties shall constitute a right which, on the other hand, subject to consideration the other party, is the price.
To accept the conditions regarding the definition of the physical object to the mutually binding contract, we could say, as a material object of the concession contract is the thing leased, they constitute the grantor benefit and concession fee to the service operator is subject.
The cause of the concession contract Romanian legal literature because (for) the juridical act, was defined as the objective conclusion. 9
Although not apparent to concessions, specifically the regulations governing it, however, their purpose can be emphasized through an overview of the reasons which lead to a legal person of public law to decide leasing a property, a activities or public services.
First, we think, need more efficient public services and activities of exploitation in a market economy, public goods, play a leading role in the decision of concession by the grantor.
Second work of turning a private person, than anything else does not remain a responsible corporate and public service cannot give up power to organize the service, even if the rules of organization are provided in the contract.
In other words, although the activity, service or goods are competitive exploitation and profit, specific market economy, the grantor does not lose, by license, ownership, while retaining the important attributes, such as the right to control the progress of the obligations assumed by the concessionaire.
Moreover, in certain circumstances, the grantor has the right to modify even the regulatory concession contract.
Regarding the aim of the operator, it must be sought in his private interest, the concession
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is, in this viewpoint, a business that time that another profit-making.
Stability of legal relations arising from the concession may seem at first glance, as poor if it is considering the possibility that, in our sole discretion, the grantor can modify some of the regulatory provisions. However, general conditions which may be legal this, as the grantor for compensation obligation of the operator in such cases, give its guarantee that will not suffer financial harm, but rather the conclusion of the contract will cause a profit for himself.
Therefore, as stated, rightly in French legal literature, "concession arrangements provide fundamental data and reconciliation between two seemingly antithetical: on the one hand, public service, subject to the imperatives of public interest and on the other hand, a which aims to protect personal privacy interest."
Concession fee According to article 1, paragraph 2 of Law no.219/1998 the regime of concessions, leasing of property, an activity or a public service, is made in exchange for royalties.
As is apparent, that law, which is the general legal framework of the concession, did not define the notion of royalty.
Some clarification of this notion meet them, but in special laws on leasing of certain public goods. For example, Law no. 61/1998- Mining Law, the article says. 3, section 28, that means paying royalty to the state, relative to mineral production value, obtained by the holder, representing offset declining reserves of mineral resources.
The oil law no. 134/1995, in Article 2, letter. m, specify that the fee is a percentage of gross output of owner and state caused him to compensate for declining oil reserves.
Another legal provision concerning royalty encounter, in Article 1, paragraph 3 of Government Ordinance no. 30/1995 (approved and modified by Law nr.136/1996), concession scheme on construction and operation of sections of land communication ways.
Under this legislation mentioned by the fee means an amount of money in RON or foreign currency, under the law, or other material benefits agreed by the parties, according to the specific concession.
References relating to the royalty definition are insufficient in the following we try to define the concept of royalty, taking into account several of its legal characteristics.
We define the royalty price concession contract as expressed in a sum of money, with tariffs as a source of training for concessionaires of public services rendered to beneficiaries, or a share of gross production or profit after operating a public good or private state, county, town, village or for the use of such property, the amount that the operator due to the grantor, in exchange for goods or rendering of public service operation.
Form of concession contract Romanian legal literature, as the juridical act was defined as "how to exteriorization of the event will clearly intend to create, modify or extinguish a juridical relation to concrete."
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Broadly as the juridical act may designate three requirements form: form ad validity or solemnity - meaning the form required for validity of the legal act itself, as the ad probationer, that the form required proving legal act and the form required for validity against third parties.
The form of administrative contracts in general, the French doctrine and jurisprudence has recognized that in practice, "administration contracts are almost always written, but in principle can also be verbal or contract administration will be expressed in a form tacit.
If, as was shown, some administrative contracts can be concluded, in principle, even verbally, instead, the situation is different in the case of concession contracts.
According to the Art. 47 GD. 216/1999, concession contracts will be concluded in writing, under penalty of absolute nullity.
The special concession laws, a provision similar encounter in Article 11 of Law no. 61/1998 - Mining Law, which states the necessity of written form of licenses, which are, in fact, the mining concession.
Moreover, Art. 3, section 15 of that law defines as the legal license agreement between the grantor and grantee in order to make mining activity.
That is, we conclude that, in terms of the concession contract was established as an ad solemnity, which means that non-conclusion entails non-existence of the written contract he may be proved by any other evidence.
Duration of the concession Referring to the delegation during the conventions of public services (the category which is part of the concession contract) a French writer says that the principles governing these conventions, is their limited duration.
In support to what the author mentions Art. 40 of the French Law of January 29, 1993 (Act "Sapin"), which limit the delegation of public service conventions.
Accepted conditions to new conventions in principle limited duration of the delegation of public services, adding that, while limiting their perpetual prohibition of delegation, is the essence of such contracts.
Ultimately, through public service delegation contracts, administrative law consists in transmitting the service.
Procedure prior signing the concession contract Specialized in legal literature has shown, rightly, that "when we analyze problems of conclusion, in reality we mean the formation mechanism of wills agreement."
In Roman law, a contract is held by an agreement of wills made in the offer and acceptance of the offer.
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In the case of concession - which are regulated by Law no.219/1998 and by special laws on concessions - achieving mutual agreement between the parties, in terms of a contract is preceded by a procedural step required prior and called the legislature "initiation concession" and referred to chap. II, Art. 6-9 of Law no. 219/1998. Also, this stage is stipulated in the Art. 5, GD nr. 216/1999 approving the Methodological Norms - Framework for Implementing the Law no. 219/1998.
Initiating concession According to, art. 6 of Law no. 219/1998 initiative concession grantor may have or any interested investor.
a) The grantor of the lease Initiative
The event will of the grantor of the lease must be based, according to art. 7 of the Act, an opportunity to study previously conducted and approved, as appropriate, by order, decision or determination in accordance with Art. 6, Para. 2 of GD 216/1999.
The main elements of opportunity study mentioned in Art. 7 of the Law are:
a. description of the property, business or public service which will be leased;
b. reasons of economic, financial, social and environmental benefits that justify granting the concession;
c. investments needed for modernization or expansion;
d. minimum level of royalty;
e. how to grant concessions under consideration, if recourse to public auction open auditions or negotiated procedure, this option should be motivated;
f. estimated duration of the concession;
g. expected time for the realization of the concession;
h. binding opinion of the Central State Office for Special Problems and the framing of the General Staff in infrastructure concession national defense system, as appropriate.
Therefore, it can be concluded that the purpose of drawing up, by the grantor, the study of opportunity before outburst concession procedures themselves, is to get public concession authority, economic and financial data sufficient to determine if the concession is justified or not. In other words, it may assess whether the concession will be made more efficient public service objectives or profitable exploitation of the public good.
b) Initiative investor interested in the concession
As result of Art. 6 of the Act, and of art. 5, Para. 2 of GD. 216/1999, concessionaire’s initiative and an investor may be interested. Thus, it may make a proposal in writing, public authority, which will include identification of the investor, firm and serious expression of intent to lease, the concession and business plan.
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Should be noted, however, that, at this stage, the initiation concessionaires, concession proposal cannot be considered a real offer, The only legal effect of which is the birth of the obligation of public authority to proceed within 30 days, to prepare study opportunity, unless the parties agree on another deadline.
Study opportunity can be, but prepared by an independent consulting firm, if the grantor and the operator agree on this, this study cost being borne by the concessionaire, according to art. 9, Para. 2 of the Act.
The specification for the concession Another conclusion of the preliminary phase of the concession contract is drawing specifications.
If you look at the end of the concession contract as a process that includes the evolution of several steps required to go, then we step drawing up specifications situations, as further public authority decision to lease (issued on the study of opportunity), but prior call to tender the concession made by the advertising auction.
According to, art. 12. Para. 2 of Law no. 219/1998, the specifications will include, necessarily, the operating conditions of the concession investment to be made by the concessionaire, the financial and insurance terms, property arrangements used by the concessionaire and the obligations incumbent on environmental protection.
In turn, GD. 216/1999 stipulates in art. 9, Para. 2 that, besides the mandatory content of the law said, the specification may include:
. the concession: the data necessary to identify the exact object of the concession, which will obtain the technical-economic substantiation provided the opportunity to study, identify the goods resulted from inventory and evaluation;
. destination of goods, activities or services subject to concession;
. compulsory insurance and public service activities in the continuous trading and continuous;
. ban sub-concession property, activity or service leased;
. conditions in which the operator can rent leased asset during the concession period;
. duration of the concession may not exceed 49 years;
. the minimum royalty and the calculation thereof;
. the value of investments made until the concessionaire;
. the conditions imposed by the nature of the goods, activities or services
. subject to public concession, such as protecting state secrets, special materials, safe operation, conditions of use and heritage conservation or the protection and the national cultural heritage, as appropriate, environmental protection, safety, conditions imposed
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international agreements and conventions to which Romania is party.
. the organization of the concession: concession authority option for organizational form of the operator;
. amount of collateral to be deposited by the concessionaire according with art. 34 of law;
. clauses relating to termination of the concession contract;
. for ongoing activities or public services, provision for staff and social protection;
. any other specific conditions to be determined by the grantor.
Some legal provisions in relation to term of references, meet them in Ord. 50/1995 on the concession system construction and operation of communication sections of roads.
Thus, art. 13 of the mentioned normative act specifies the main elements which should contain the specifications in general, they are similar to those stipulated by the Law. 219/1998.
Absence of express provisions of special laws of the concession, the requirement of drawing up the specifications and its contents should not, however, interpreted as meaning that, if those concessions are not required specifications, but that in those cases apply provisions of general law - Law no. 219/1998.
Therefore, the provisions of normative acts mentioned above, it can be concluded that, in the content specifications, the public authorities will be obliged to stipulate evidence provided by art. 12, par. 2 of Law no. 219/1998, while inserting in its content of these provisions in art. 9, paragraph 2 of GD. 216/1999, are optional.
Public procurement procedure for concessions
Open tender procedure Open procedure takes place, usually in one stage. The contracting authority has the right to decide to hold a further stage of electronic auction, in which case it is obliged to announce this decision in the tender notice and tender documentation.
Transmission is initiated by open auction for publication in accordance with Art. 55 Ordinance No. 34/2006, has a contract notice requesting that interested operators tender.
If the estimated value of public procurement contract is greater than that stipulated in art. 55, Para. (2), Ordinance No. 34/2006, the period between the date of submission of tender announcement for publication in the Official Journal of the European Union and the deadline for submission of tenders must be at least 52 days.
If the estimated value of public procurement contract is equal to or less than that stipulated in art. 55 Para. (2), Ordinance No. 34/2006, the contracting authority has to send a notice to be published in the ESPP with at least 28 days before the deadline for submission of tenders.
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Restricted tender Restricted procedure takes place, usually in two stages:
a) the stage of selecting candidates by applying the selection criteria;
b) phase of the evaluation of tenders submitted by candidates selected by this criterion award.
In this case, the contracting authority has the right to decide to hold a further stage of electronic auction, in which case it is obliged to announce this decision in the tender notice and tender documentation.
Restricted tender is initiated by submitting for publication in accordance with Art. 55 Ordinance No. 34/2006, of a notice calling for economic operators interested in submitting applications.
If the estimated value of public procurement contract is greater than that stipulated in art. 55 Para. (2), the period between the date of submission of tender announcement for publication in the Official Journal of the European Union and the deadline for applications should be at least 37 days. If, for reasons of emergency, cannot be observed number of days stipulated above, the contracting authority has the right to accelerate the procedure by reducing this period, but not less than 15 days.
If the estimated value of public procurement contract is equal to or less than that stipulated in art. 55 Para. (2) Ordinance No. 34/2006, the contracting authority to transmit the announcement for publication in ESPP participation by at least 16 days before the deadline for applications.
Any economic operator is entitled to apply for the first stage restricted tender procedure.
Number of candidates selected after the first round of bidding should be restricted at least equal the minimum number indicated in the notice.
If the number of candidates meeting the selection criteria is less than the minimum specified in the notice, the contracting authority is entitled:
a) to cancel the restricted procedure;
b) to proceed with the restricted procedure only to those candidates who meet the criteria required, to the extent that their number is still sufficient to ensure genuine competition
The contracting authority is obliged to send an invitation to the second stage restricted tender procedure for all selected candidates.
It is forbidden to invite to the second stage of the auction of a business operator which had not applied in the first stage or has not met the selection criteria.
The invitation must include the following information:
a) References to the published tender notice;
b) The deadline for submission of tenders;
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c) The address to which to send bids;
d) Language to be used to tender offer;
e) The date of opening of tenders;
f) If applicable, details relating to additional documents that economic operators must submit in order to verify statements or completing documents presented in the first stage to demonstrate the technical and economic-financial capability.
If the estimated value of public procurement contract is greater than that stipulated in art. 55 Para. (2) Ordinance No. 34/2006, the contracting authority has to send invitation at least 40 days before the deadline for submission of tenders.
If the estimated value of public procurement contract is equal to or less than that stipulated in art. 55 Para. (2) Ordinance No. 34/2006, the contracting authority has to send invitation at least 22 days before the deadline for submission of tenders.
Competitive dialogue The contracting authority is entitled to apply for competitive dialogue procedure for awarding public procurement contracts the following conditions are cumulatively fulfilled:
a) the contract in question is considered to be extremely complex;
b) applying the open or restricted procedure would not allow the award of public procurement contract in question.
According to the provisions of art. 94 points. a) Ordinance No. 34/2006, a public procurement contract is considered extremely complex if the contracting authority is not objectively able:
a) to define the technical specifications capable of satisfying the needs and demands of them;
b) to establish financial assembly and / or legal framework of project implementation.
Competitive dialogue procedure takes place in three stages:
a) phase of pre-selection of candidates;
b) phase of dialogue with the candidates admitted in the pre-selection, to find solutions/solutions able to meet the needs of the contracting authority and upon whom / which candidates will develop and submit final offer;
c) The final stage of the evaluation of the tenders submitted.
Competitive dialogue is initiated by submitting for publication, in accordance with Art. 55 Ordinance No. 34/2006, of a notice calling for economic operators interested in submitting tenders.
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Any economic operator is entitled to apply for participation to the competitive dialogue procedure.
Negotiation with publication of a tender notice The contracting authority is entitled to apply a negotiated procedure with prior publication of an announcement of participation only in the following cases:
a) when, after applying the open tender, restricted tender or dialogue competitive bids were submitted only unacceptable or inconsistent, the negotiation procedure in this case is possible only after the annulment proceedings brought by open tender, restricted or competitive dialogue and only if the initial requirements stipulated in the tender documentation are not substantially altered;
b) in exceptional, duly substantiated when nature of the works/goods/services or the risks involved in the execution/delivery/supply their initial estimate does not allow global price of future public procurement contract;
c) when the services to be purchased, especially financial services and intellectual services, such as those involving the design works, are such that the specifications can be drawn with precision that must be assigned a procurement contract open tender or public auction by applying small;
d) where the work to be done is not only necessary for scientific research, experimentation and technological development, and only if they are not getting done for profit, nor towards the costs involved.
Negotiating with the publication of a notice of participation is initiated by submitting for publication in accordance with Art. 55, a notice of participation, which require operators interested in submitting applications.
Negotiation without prior publication of a tender notice The contracting authority is entitled to apply a negotiation procedure without prior publication of an announcement of participation only in the following cases:
a) when, after applying the open or restricted tender no bid submitted or only inappropriate bids have been submitted, being completely irrelevant in relation to the contract, the negotiation procedure in this case is possible only after the annulment proceedings brought by open tender or restricted tender and only if the initial requirements stipulated in the tender documentation are not substantially modified, the contracting authority has, in this case, the obligation to transmit information to the European Commission, if this information is requested;
b) when, for technical, artistic, or for reasons of protection of exclusive rights, public procurement contract can be awarded only to a particular economic operator;
c) as a measure strictly necessary when the auction application periods open to restricted or negotiation with publication of a tender notice can not be met for reasons of extreme urgency caused by unforeseeable events and not due to any form of action or inaction of
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the contracting authority. The contracting authority has the right to determine the duration of a period longer than that needed to cope with emergencies caused by the negotiated procedure without prior publication of a contract notice; d) when the delivered products are to be manufactured solely for scientific research, experimentation, education and technological development, and only if they are made in order to obtain profit, nor towards the costs involved; e) when necessary purchase, the original supplier of additional quantities of product for partial replacement or extension of equipment/facilities previously supplied, and only if the initial switching arises in case the contracting authority to purchase goods which, due to different from the existing technical, cause incompatibilities or technical difficulties increased operation and maintenance, the period in which such contracts may be awarded should not exceed, usually three years from initial contract award to supply; f) when products are traded on commodity exchanges and their acquisition is done through operations on the available market; g) when products can be purchased on particularly advantageous from a trader who finally liquidated businesses, from a syndic judge who manages the business of a trader in a state of bankruptcy or liquidation, through an arrangement with creditors of a bankrupt trader or a liquidation or other similar procedure foregoing, regulated by law; h) when, following a competitive solution, service contract should be awarded, according to the rules initially, one contestant winner or winners of the respective competitors in the latter case, the contracting authority with the obligation to transmit invitation to negotiate all competitors winners; i) when required purchase of works or additional services/additional, not included in the original contract but which through unforeseen circumstances have become necessary for fulfilling the contract in question, and only if they comply, cumulatively, these conditions:
- Allocation to be made initially to the contractor;
- Works or additional services/additional cannot be, technically and economically separate from the appearance of the original contract without great inconvenience to the contracting authority or, although separable from the original contract, are strictly necessary in order to fulfill it;
- Aggregate value of contracts awarded for additional works and services / additional value does not exceed 50% of the initial contract; j) when, after being awarded a contract for works or services, the contracting authority intends to acquire new work, i.e. new services, which are similar works or services procured under the original contract award but yeah comply, cumulatively, these conditions:
- Contractor award is original and new works, new services that consist in the repetition of works or services similar to those stipulated in the contract originally awarded and comply with the requirements of the specifications developed during the contract award;
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- Works contract / service was originally awarded by open procedure or restricted;
- Initial estimated value of contract works / services was determined by taking into consideration including works / similar services can be purchased thereafter;
- In the notice on procedures for awarding the contract originally stated that the contracting authority has the right to opt for the subsequent acquisition of new works similar like that new services, the trader whose bid will be declared the winner in the proceedings question;
- The contracting authority is entitled to apply this procedure in a period which shall not exceed three years from initial contract award.
The request for proposals The contracting authority is entitled to apply the bidding only if the estimated value without VAT of the public procurement contract is less than the equivalent in lei of the following thresholds:
a) Supply contract: 40 000 Euros;
b) Service Agreement: 40 000 Euros;
c) Works contract: 250.000 Euros.
Starting January 1, 2007, request for proposals is initiated by the publication in ESPP an invitation to tender process.
Offers evaluation The contracting authority is entitled to hold a competition for solutions, as described in art. 18 Para. (2) Ordinance No. 34/2006, as an independent procedure, in which competitors can gain prizes and / or prizes, or as part of any proceedings leading to the award of a contract for services.
Competition documentation must include at least:
a) general information on the contracting authority;
b) instructions regarding the deadline to be met and Formalities in connection with participation in the competition;
c) minimum qualification requirements of the contracting authority has decided to ask them, and documents to be presented to prove the competitors fulfill those requirements;
d) all requirements based on which contestants are to develop and present project;
e) the amount of prizes that will be granted if the contest is organized as an independent procedure;
f) commitment contracting authority to conclude agreements with one winner or winners of
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that, if the contest is held as part of any contract award procedures of services;
g) detailed and comprehensive criteria for determining project/projects win/win.
Contest is initiated by publication in accordance with Art. 55 Ordinance No. 34/2006, has a contract notice requesting interested economic operators to submit proposals.
3.2. Comments on articles in Romania
Subjects concession contracts The essential feature of administrative contracts, the species which is part of the concession contract and it differs from civil contracts, is that the premiums fell at least one of the subjects of the contract is a legal entity under public law or in other words a public authority or person of public morality.
Thus, if civil contract subject may be any person who has full legal capacity, or any legal entity in administrative contracts, at least one topic must be "quality", namely to be a special public authority or a moral person of public law.
Variety of administrative contracts is very high, depending on their subject, and therefore ending the contract between the parties bears different names. For example, administrative contracts to purchase public services, public purchasing authority called the other side of the seller and buyer, administrative or public lending contracts parties that called the borrower and borrowed.
Unlike other categories of administrative contracts in which the law does not specify the name of the parties, naming them according to the contract in question, if the concession contract, the legislature established the name of the Contracting Parties, subject to the laws of the concession contract.
Thus, article 1, paragraph 2 of Law no. 219/1998 on the regime of concessions, the concession contract defines as the contract whereby a person called the grantor shall for a specified period not exceeding 49 years, another person called the operator, acting on the risk and responsibility, right and obligation of running a good, an activity or a public service in exchange for royalties.
By definition of the legislature determine the name of the contracting parties both of which form the legal relationship - that the grantor and the concessionaire, subject to the concession contract, which distinguishes it from other administrative contracts. May the law, the legislature determine the scope of public authorities or public institutions, public legal persons, which may act as grantor, and scope of private individuals who can act as a concessionaire.
According to article 5, paragraph 1 of law "have the status of concession on behalf of the state, county, town or village:
a) ministries or other bodies of central public administration, for public or private property that the state or for activities of national interest or public services;
b) county councils, local councils or local public institutions for public or private property
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that the county, city or municipality or for public activities and services of local interest.
French legal doctrine all public authorities and institutions were generically called "moral persons governed by public law within which you use us.
Signature contract of concession As discussed earlier this chapter, concluding the concession contract is preceded by the following stages mandatory procedures - auction in one of two forms of it, or direct negotiations - without which the concession cannot validly conclude.
On the other hand, public auction of the concession award or nomination as the winner of direct negotiation, give rise to rights and obligations, both in favor or task confidant, and the lessee.
Thus, the grantor is born right to terminate the lease at the act that won the public tender and direct negotiation, and corresponding obligation not to conclude the contract another person or entity. The grantor liable as it relates to contract with the winner of the tender or direct negotiation.
I said before that the concept legislature novel end of the concession contract is characterized by automatism's conclusion, which means that the award winning public auction or direct negotiation is, in fact, individualization operator and conclusion of the contract is binding, we May be subject to approval of any other organ of public administration.
Hence is another feature of the concession contracts namely that they are contracts signed "guess Personae, which was considering contracting party who has acquired, subject to legal procedures, the quality of the operator.
Also, the concessionaire is born right and duty to enter into that contract, under penalty, as, otherwise, be obliged to pay damages - interest.
Under article 28 of the Act, the concession contract is concluded within 30 days from the date on which the grantor has informed bidder's acceptance of his tender, if the specification does not otherwise stated.
Also 48, in accordance with, paragraph 2 of GD. 216/1999 "tender is advised to consider the receipt of the letter with acknowledgment of receipt, which includes acceptance of its bid.
Failure to meet conditions stipulated in paragraph 1 of Art. 28, about 30 days deadline for concluding the contract, the payment of damages - by the party in default interest (article 28, paragraph 2 of the Act).
Period of 30 days starts from the date on which the registered letter with acknowledgment of the grantor, on accepting the offer came to the concessionaire and is calculated on days off, according to Code of Civil Procedure.
If the conclusion of the contract could not take place due to the fault of one party, the injured party may bring civil action in court of common law jurisdiction, requesting that the
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guilty party to pay damages - interest, of course, if proved sustaining an injury.
Modification of concession contract
Unpredictability economic theory In the centre of the theory underlying economic considerations, which price changes considered when concluding the contract, due to unforeseen situations arise. These situations can be unpredictable nature, as, for example, earthquakes, floods, long periods of drought, all of which are likely to raise costs or benefits accruing to contracting party to drive turnover.
These cases may be caused by unpredictable human deed or will of external parties such as, for example, state of war.
Performance of the contract still is possible, but it becomes, in this case, economic disaster for the public authority contracting party.
Essential feature of unpredictability consists in the impossibility to provide the parties to end the contract, the occurrence of cases affect the financial balance of that.
Administrative theory and the theory of chance ‘offense Prince "(fait du prince) The second theory on unpredictability, target hazard or administrative theory deed Prince "(fait du prince), as called in French doctrine.
According to this theory, when the public authority, exercising its powers, worse conditions for performance of a contract, it may be required to pay an indemnity contracting party in relation to the damage.
State of unpredictability conditions To exist, the unpredictability - with two of its forms - from administrative contracts, must meet the following conditions:
a) there is a legal administrative contract ended.
b) occur an event that was unforeseeable when concluding the contract.
c) unpredictable events must be independent of the will of the parties, outside of these wills.
d) Another condition is the existence of unpredictability the event to cause an "upset" the financial balance of the contract.
Unilateral modification of the concession contract According to, Art. 31, Article 1 of Law no. 219/1998 "grantor may amend unilaterally the
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regulatory concession contract, with notice to the operator, for exceptional reasons related to national or local interest, as appropriate.
From the very beginning show that unilateral modification of the concession contract is similar to administrative hazard theory, previously treated. Thus, as with hazard administrative, public contracting authority (the grantor) may amend unilaterally the contract terms.
Also, another similarity between the two situations lies in the obligation of public authority contractors, the contractual partner indemnify or (in this case, the operator) if unilateral modification brings his injury.
According to, Art. 31, para.2 of the Act, if the unilateral modification of contract brings a loss, the concessionaire has the right in a prompt, adequate and effective compensation.
The difference between theory and administrative chance unilateral modification - by concession - the concession contract, is that while the first contract administrative situation may change even in the absence of contractual clauses to this effect in the second situation even unilateral modification is based on a legal and contractual provision.
A second difference is that, if when applying the theory of chance, that the supplier has the right to decide on termination, if unilateral modification of the concession contract, he is obligated to continue performance of its benefits, even if in disagreement with the amount determined for which he sought compensation.
According to, Art. 31, Para. 2 of law, "in the case of disagreement between grantor and grantee regarding the amount of compensation, the amount will be determined by the competent court. This disagreement can not in any way, allowing the operator to evade its contractual obligations."
Also, GD nr. 216/1999 art. 64, paragraph 2, the need for continued execution of the contract by the concessionaire, under new conditions set by the grantor, is more clearly stated, legal text stipulating "the obligation of the concessionaire to continue exploiting the property, this activity or service provision.
It should be noted that in accordance with Art. 31 of law, the grantor has the right to change only the regulations of the concession contract - hence the terms contained in the specification - according to art. 49 let. A of the GD. 216/1999.
On the other hand, before proceeding to unilateral modification of the concession contract, the grantor has the legal obligation to notify about this, the concessionaire.
In the absence of legal provisions on time limit for notifying the operator, we think it should be long enough to allow organizing the execution of the contract, under the new conditions set by the grantor.
Although unilateral modification of the grantor is a right, yet he cannot invoke this right, unless you prove the existence of exceptional reasons related to national or local interest.
If the operator cancels the contract believe that notification was made in the absence of exceptional reasons, it may request the competent court to require the grantor to prove the existence of such exceptional reasons and failing to dispose of their unilateral cancellation
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of the contract modification.
In case the operator does not challenge the legality of unilateral change, but they disagreed about the amount awarded as compensation, has the opportunity to ask the court, it amounts to establish the amount due as compensation.
In this case, the concessionaire is obliged to prove the existence of injury caused by unilateral modification of contract, as its extent.
We believe that perhaps the damage will be done by an expert who will lead and calculations to be covered by the grantor. Burden of proof lies with the concessionaire, which will be required to pay the equivalent expertise.
Note that in the special laws regulating concessions to certain goods or public services, not concrete ways to meet the unilateral amendment of the concession contract.
Therefore, the provisions of Law no. 219/1998, which is the legal framework in the field, are fully applicable to all categories of licenses.
Termination of the concession contract One of the characteristics of a concession is determined by its duration. Looks like a Roman author of the interwar period "because public service concession remains on a public service, administration cannot alienate him forever, but only for a certain period. On the other hand, however, even during this term administration should be allowed to dispose of public service concession, just as she believes it is in the public interest."10
The same author lists the following cases of termination of the concession: celebration time, failure to bond, redemption concession and cases of force majeure.11
Another author interwar Romania, mentioning, in turn, these situations where the concession ends, namely: it expires, termination requested by one party for breach of contractual terms by the other hand, fall into bankruptcy of the concessionaire, the ransom by law to stop some sort of concession for public services, and that would amount to a un- consented ransom and, ultimately, the failure of essential conditions required to operate a public service.
Current Romanian legislation in terms of concessions and it lists situations in which the contract terminates.
Thus, Law no. 219/1998 regarding the regime of concessions, provided in art. 35 these cases in which it operates termination of a lease:
a. the expiration of the said concession;
b. if the local or national interest so requires, by cancellation of the concession, with payment of fair compensation and the grantor prior to pregnancy;
c. for failure to observe contractual obligations by the concessionaire, the unilateral termination of the concession, with payment of compensation from the operator;
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d. for failure to observe contractual obligations by the grantor, the unilateral termination by the concessionaire, with payment of compensation from the grantor;
e. the disappearance, a case of force majeure, the leased asset or if the concessionaire's inability to exploit targets, by waiver, without payment of compensation.
In other CUV say that the concession contract termination occurs in the following cases:
1. Termination on expiry of the period;
2. Termination of the concession contract;
3. Termination of the concession;
4. Giving up the concession.
Termination of the concession contract at the end of the fulfilment period As I said before, the concession contract is concluded for a specified period not exceeding 49 years, as the legislature stipulates in art. 1, paragraph 2 of Law no. 219/1998. 219/1998.
To mention that, usually, the time is part of the contractual terms of the concession agreement will be the expression of the parties.
Although HG no. 216/1999 on Norms - Framework for Implementing the Law no. 219/1998, art. 2, Para. 2, points f, stipulate that the duration can be entered in the specification - i.e., in the regulation of concession - however, we believe that deadline for ending the contract must be stipulated in the contract terms, reflecting, as I mentioned, the parties will Contracting.
However, to the extent that the concession requires a minimum to achieve the purpose for which the concession, we think that nothing prevents the grantor, the ad auction for the concession to predict the minimum time that is about to lease, following the conclusion of the contract that the parties to stipulate the precise time of the concession.
If, before reaching the concession period, the parties agree to extend the contract, an addendum will be completed which will include extending the period and which cannot exceed half of its original length, under Article 68, paragraph 2 of the GD. 216/1999. 216/1999.
However, on expiry of the concession will apply the provisions of Art. 29 of law issues will be addressed in a separate chapter.
Termination of the concession contract (redemption concession) According to, art. 35 b of the law, the concession contract terminated and if the local or national interest so requires, by cancellation of the concession, with payment of fair compensation and prior to pregnancy grantor.
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As shown in the Romanian legal doctrine "if the contract is the result of a consensus mutuus and revocation must be the result of a dissensus mutuus".
If this is right, then cancellation is the exception and is dedicated and Civ. Code. art. 969, Para. 2, which stipulates that revocation of conventions can be achieved not only by mutual consent, but "in cases authorized by law."
Civil Code provides that may be terminated by the unilateral will of one party, without any lease term (Article 1436, paragraph 2), the contract of mandate (Art. 1552 and 1556) or storage contract (Article 1616).
So, according to the Roman Civil Code, the foregoing cases, cancellation may result from the will of any of the two Contracting Parties.
Also, as shown in the authors mentioned above, the civil law, cancellation clause be inserted in contracts subject to certain rules.
Unlike the cases described above and established the Civil Code, the cancellation of the concession, is an exception.
Thus, if a civil contract cancellation may be made by either party, in turn, termination of the concession contract may be made only by the grantor.
Also, unlike some civil contracts may be terminated only if a clause to this effect, the concession contract may be terminated even without any contractual provisions of this nature.
We can say that the main features of unilateral (redemption) concession are:
denunciation (repurchase) is a unilateral measure of the grantor, with the effect of terminating the concession contract;
unilateral measure (redemption) may be made by the grantor during contract execution;
the reasons for termination of grantor (redemption) are of interest only;
denunciation (redemption) may be ordered by the grantor even in the absence of contractual provisions in this regard;
in case of termination (redemption) the operator is entitled to compensation to cover his injury
denunciation (redemption) may be ordered even in the absence of fault of the concessionaire contract.
As a consequence, we define denunciation (redemption) as a mode of extinguishing obligations of the parties, specifically the administrative contracts - especially those concession - through which public contracting authority (the grantor, in the case of concession contracts), citing general interest, has the right to terminate a contract in the absence of contractual fault or contracting party, but only after its prior and fair compensation.
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Add that, if redemption concession contract may be terminated by the acknowledgment or recognition by the measure of unilateral concession grantor, or, otherwise, a judgment shares following a finding, made by the grantor.
A question which arises is to know whether or not the redemption of part of the concession?
To answer this question, we must consider that any legislative act does not, in principle, partial redemption.
This position is shared by French doctrine, under which the redemption is, in principle, total, except where otherwise specified in the agreement between the parties.
In case of partial redemption, the grantor will have to consider the need that after this procedure, the operator should be able to fulfill further contractual obligations, and otherwise, partial redemption is not possible
In conclusion, we believe that always, partial redemption is possible if it was stipulated in the contract between the parties and if it does not affect all the services which were bound operator.
Annulment of concession agreement Under Article 35 of law, termination of the concession may occur in two situations.
In the first situation - provided for in art. 35 points. c - unilateral termination may be requested by the grantor, for failure to observe contractual obligations by the concessionaire, with payment of compensation from the latter. In the second situation, unilateral termination can be requested by the concessionaire, for failure to observe contractual obligations by the grantor, to pay compensation to his pregnancy (Art. 35 lit. d in law).
Also, another legal provision relating to termination of the concession a meeting in GD. 216/1999, art. 70, according to which "in fault for failure to observe the obligations assumed by one party through the concession or the inability to achieve them, the other party is entitled to request the court or, if necessary, the arbitrators to rule on the termination contract, with damages."
Thus, two such cases for which a party may request termination of the concession: contractual failure or inability of the other party to meet them.
From this perspective differs fundamentally termination of cancellation of concession.
Thus, if cancellation can only be done by the grantor, the termination may be requested by either Contracting Party.
Also, if cancellation is made only for reasons of national or local interest, termination of contract has a base failure or inability of the other party to meet them.
So, in essence, the withdrawal of the concession is in fact a unilateral termination of contract to which the grantor is entitled to proceed when the operator or his contractual obligations or for reasons attributable to the concessionaire, and it cannot meet contractual
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duties.
In addition, we believe that in order to squeeze concessions, non-benefits by the concessionaire should have serious and permanent consequences.
Giving up concession Another cause for termination of the concession is when the concessionaire abandons the contract.
According to, Art. 35, a, of Law no. 219/1998, lease termination occurs in the case of the disappearance, a case of force majeure, the leased asset or if the concessionaire's inability to exploit targets. In this situation can change concession operator, but without the entitled to receive compensation from the grantor.
Giving the concession is regulated by art. GD 71. 216/1999 approving the Methodological Norms - Framework for Implementing the Law no. 219/1998.
So giving up the essential element of concession is the existence of force majeure, which result in the disappearance of the property leased, the lessee or objective impossibility of the exploit.
Constituting force majeure event, it will be independent of the operator, who "could not even foresee nor prevent or prevented and which make it absolutely impossible to execute the concession".13
Transparency and publicity in Public Procurement Issues of transparency and publicity, public procurement are discussed in Chapter 2 of Law no. 34/2006
Obligation to ensure transparency of public procurement and signing framework agreements with the publication of notices, and participation award is the contracting authority.
The contracting authority has the obligation to submit for publication announcements provided by the operator of SEAP, in this sense only using electronic means which in turn is obligated to provide electronic transmission of notices for publication in the Official Journal of the European Union. SEAP operator is obligated to provide the National Authority for Regulating and Monitoring of Public Procurement unrestricted access to ads submitted by the contracting authorities before publication.
National Authority for Regulating and Monitoring of Public Procurement check each ad submitted by the contracting authority for publication in the ESPP, to the extent that the announcement is related to the procedure for the award of a contract with an estimated value greater than the following thresholds: 40 000 euro for the supply and services contract and 250,000 for contract work. Within two business days of receipt of the announcement in the ESPP, National Authority for Regulating and Monitoring of Public Procurement shall:
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a) the operator to issue acceptance publication ESPP for that announcement, in case of the examination found no errors / omissions of Completion; b) reject the publication of the notice, if you are finding errors / omissions of completion, while informing the contracting authority of this decision, and on how errors / omissions can be remedied.
SEAP operator has the right to publish submitted by the contracting authority or to transmit for publication in the Official Journal of the European Union without getting acceptance for publication issued by the National Authority for Regulating and Monitoring of Public Procurement.
In case of technical reasons beyond the operator ESPP is not possible to announcements in electronic format for publication in the Official Journal of the European Union is obliged to send their National Authority for Regulating and Monitoring of Public Procurement. After Announcement published in the ESPP, the contracting authority to transmit the announcement and Autonomous Official Gazette, for publication in the Official Gazette, Part VI, Public Procurement.
Ad published nationally should not contain any other information to those existing in the notice published in the Official Journal of the European Union and must indicate the date of transmission by the European Commission.
The contracting authority is obliged to submit for publication a notice of intent if: a) the total value of contracts / framework agreements, which will be assigned / completed within 12 months to purchase products from the same group CPV is equal to or higher than the RON equivalent of EUR 750,000; b) the total value of contracts / framework agreements, which will be assigned / completed within 12 months for the purchase of services is equal to or higher than the RON equivalent of EUR 750,000; c) The estimated value of contracts / framework agreements for works, which will be assigned / completed within 12 months, is equal to or higher than the RON equivalent of EUR 5 million.
Announcement of intent to publish; a) in the Official Journal of the European Union, the ESPP and the Official Gazette, Part VI, Public procurement, or b) only in the ESPP, provided that, before publication, have been sent a simple announcement by the European Commission prior information.
The contracting authority is obliged to submit for publication a notice of participation when: a) initiate open procedure, restricted tender, competitive dialogue or negotiation with the publication of a notice, for awarding public procurement contract or to conclude the Framework Agreement; b) launching a dynamic purchasing system; c) initiates the process of awarding a public procurement contract by a dynamic purchasing system in this case is an ad publishing simplified d) A contest of solutions.
Notice is published in the ESPP and the Official Gazette, Part VI, public procurement and, if necessary, in the Official Journal of the European Union.
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The contracting authority is obliged to submit for publication an award notice within 48 days after: a) has completed the tendering procedure - open tender, restricted tender, competitive dialogue or negotiation - by awarding the public acquisition contract or the conclusion of the Framework Agreement; b) completed a contest-winning solutions through the establishment of competitor; c) a public procurement contract awarded through a dynamic purchasing system.
Ad Award, also the participation, is published in ESPP in the Official Gazette, Part VI, Public Procurement, and, if necessary, in the Official Journal of the European Union.
Exclusive concession contract This contract is treated separately in literature. Some authors, especially economists, think that this contract is a variety of intermediation, confusing the exclusive concession with exclusive distribution forms. It is a variety of sales, a recent comprehensive agreement. The contract is signed between the grantor and grantee, and that in return for payment; the grantor sells merchandise accompanied by a lessee of the lessee the exclusive right of resale of the goods in question on a specific market.
The essence of the exclusive concession contract is the exclusivity clause. Depending on its intensity, exclusivity cans only open, closed and exclusive only absolute. As for exclusive open, this implies the obligation of the grantor to not sell under his name and on his own, leased market, the commodity in question. Exclusivity closed first obligation requires the grantor to sell not itself cause market merchandise in leased and also obligation to its clients that require them not to sell any goods in the market because leased. Absolute exclusivity of the grantor requires extra commitment to the clients that they should ask their clients not to sell goods in question leased market.
* Example: suppose Dacia to conclude an exclusive concession contract with company X in Paris for the Dacia car sales. Clause exclusive concession Dacia SA Open supposed to assume the obligation not to sell its cars under his name on the French market; Locked exclusive concession implies that Dacia ask other companies with such contracts concluded for Dacia sales in Venezuela, China, Saudi Arabia has not resold Dacia in France, and absolute exclusivity implies that Dacia was to ask customers in these countries to ask in turn their customers are not resold Dacia cars on the French market.
Since exclusivity clauses mechanism and especially the absolute exclusivity clause, but even the exclusivity clause closed, reaching up a monopoly of selling goods in the market because leased, some countries concerned with ensuring free competition ban absolute exclusivity clause and subject to a rigorous control exclusivity clause closed.
As for the EU market, EU Commission, which is the guardian of free competition, is empowered to grant exemptions to individual or collective exclusive concession contracts but does not accept absolute exclusivity clause.
Obligations of the parties:
Grantor is required:
• In addition to respecting the exclusivity clause, sell some merchandise to concessionaire providing to him on the contract period a certain stock - usually this obligation is
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accompanied by the grantor obligation to redeem at the end of the contract goods in stock, the redemption that is usually the original price of sale;
• to provide technical assistance in marketing goods operator concerned;
• to take responsibility for non-exclusivity.
The operator must:
• to promote the sale of those goods leased market in the way of marketing the grantor;
• to ensure the preservation of commercial reputation in the market grantor leased;
• to pay the grantor.
Grantor payment includes two components: price goods sold, which is determined to end the contract with a firm amount, and who usually paid in advance in a particular share, the rest every time negotiating with the grantor, and royalty - the royalty turnover achieved by the concessionaire through commercialize the goods in question. Unlike any intermediate operator sells goods which belong the goods whose owner is and they buy in advance from the grantor. So he sells on behalf and on behalf of the grantor.
In terms no uniform rules. As for the law applicable to this contract will be applying the general principles. Therefore the parties to the contract may choose the applicable law, unless a contract is made subject to applicable law, and it is the practice of the majority, at the concessionaire, there intervened and rules, mostly for public order, insurance free competition and thus the possibility and scope of the exclusivity clause.
Of modern international trade agreements
The general rules of modern contracts are complex contracts, including contracts to structure their legal operations more interdependent, and those mutations in this interdependent support - significant changes.
Technology transfer contracts
In 1974 the UN General Assembly adopted by consensus a document prepared by the seven countries, including Romania, and is known as the "Charter of Economic Rights and Duties of States." This is a document of utmost importance because, at the time of adoption, under-recognized right of all States to have equal access to advanced technologies. International realities has evolved so that the World Trade Organization, that the complex treaties Marrakesh, one has to protect the properties and treated Industrial related commerce, namely free access to reconfirm the states - in terms of trade liberalization technology.
Access to technology can be achieved in two ways: either by special technology transfer agreements or other contractual forms involving indirect transfer of technology as economic cooperation agreements.
In the first category, the special contracts of technology transfer between: patent license agreements, patent assignment contract, contract communication know-how, consulting, contract engineering and contract franchising.
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Elements of industrial property right are: invention - protected by patent or inventors certificate, trademarks, trademark or service also protected (example: "Sibiu salami" is not necessarily in Sibiu, cheese" Penteleu, champagne), industrial designs, models and manufacturing know-how.
As for the invention, it is the most important element of industrial proprietary rights. For this reason, the invention was protected by national and international patents and international conventions on this.
Invention is the intellectual knowledge and intellectual creation can be exploited in two ways:
• the rental use, that the patent license agreement;
• selling the invention, that the patent assignment agreement.
Generally, the invention is the creation of a person or more. Since implementation of the invention, its approval and the title of protection is very expensive, usually the invention is made in the economic units and inventor of a unit that sells and exploitation of the invention is usually between the unit that come merchants and third parties. It is usually available to us, which we report.
Patent License Agreement is entered into between the owner and user of licensed its invention to the licensor, and is the contract that in return for payment, the licensee shall licensor the right to use, and use that invention.
Obligations of the parties:
Licensee shall:
• to send the necessary documentation individualism licensor invention;
• provide technical assistance to the licensor for use of the invention;
• not to license or not rent invention, the term of the contract, a third competitor.
Licensor shall:
• use the invention with respect to the licensed indications;
• not to sublicense the invention - a rent that is not a party;
• to protect his country, appropriate legislation, that patent, if it has not previously been protected - protection in the country assuming the recognition of his authorship, that the owner of the patent;
• the licensee to pay, payment consisting in general rule, annuities, that fees paid yearly turnover of the licensor as a result of using the invention.
General rule requires the licensee to end the contract lump sum royalties which should be added later.
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There are international rules on matters relating to patent protection, there are no rules about licensing the invention. Consequently, parties may choose the law applicable to the contract and if they did not practice subject to contract law in force at the licensee with the rules of application or application required immediate police or in force at the exploitation of invention - the rule based licensor.
* Example: the right of Member Andean Pact member states expressly provides that a patent license agreement may have a duration exceeding five years, because it is estimated that five years after obsolescence occurs invention because, as so advanced technology can be advanced into account as only the first five years of its appearance. This is a standard application required.
Patent assignment contract is concluded between the assignor and assignee, assuming that in return for payment, the invention that the transferor and transferee to sell licensing rights to it.
The contract of assignment can be a total contract of assignment or partial assignment contract. The total sale if the seller sells the property of the transferee, that the patent and its licensing law, and in case of partial assignment the assignor retains for itself the right use that license on their own name, without the right to license to others.
Obligations of the parties:
The transferor is obliged to transmit its own, to sell the patent assignee, to forward all documentation related to it and not license the invention that a third party;
Transferee has transferor's obligation to protect the quality of proprietary or copyright, the creator of the invention, in all countries where this is going to be used if not previously protected. It also has the obligation to pay the assignor.
Payment has the following forms: either pay a large sum at the end of contract - way less used, or a sum representing the value of the invention, plus a certain amount of time, usually 10 to 25 years, compared legislation, payment of annuities, namely percent royalty on turnover of a third party transferee after licensing of that invention.
If the parties have not chosen the applicable law, the contract is subject to the law in effect at the transferor, being the seller of the patent.
Contract communication know-how
Unlike license and other items of industrial proprietary rights, know-how, or savoir-faire in French, has no way of protection in any state of the world.
Know-how is intellectual knowledge, technical expertise, skill, skill in creating a technological recipe, a process technology, process technology.
Know-how is characterized by two features:
• is unprotected, either because it is a patented step towards an invention or cannot be trusted because paper cannot be described;
• is a relative novelty restricted to the perimeter of economic unity that emerged.
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* Example: in terms of recipes, what is written is equally accessible to everyone, "including how to make flour," put a pinch of salt ',' put a Tbsp "" put a spoon shaken. But these things have great significance from a human to another - one has fingers thicker and therefore take more salt between your fingers, and another has thinner and take less salt, or spoons can be different. After weighing and exercise to achieve a specific indication bakery, but it is relative to the flour may be more or less dense, other ingredients may be wet or dry. These things are hard to define, and to win takes know-how, that each skill.
* Example: in a garage, Uncle George hears the engine and says precisely what damage is. That "engine sounds" is the know-how. He cannot describe the noise, but he admits the experience of the technique. So he cannot put on paper.
Economic scale, know-how may have great economic value.
* Example: two housewives who have to face the same cake recipe can do just as well that applying cake recipe in places that are quite different, so is the relative novelty of the cuisine of every housewife.
Of specific know-how result the particular contract of communication know-how. This is the contract is entered into between who communicate the know-how and know-how beneficiary for a payment.
Who know-how communicate is required to submit such beneficial knowledge and to provide technical assistance in their implementation.
Beneficiary know-how is required to maintain confidentiality. One of the particular contracts is that the recipient must maintain the confidentiality of the know-how that had access during the contract, but at a certain time after the contract expires, even if that contract has been signed, but possible beneficiary aware of know-how respectively. This stems from the fact that ratings of Privacy know-how.
The second specificity stems from the relative novelty. Thus during the contract, the contracting parties are obliged to communicate to each other on any improvements they have brought the know-how involved.
Beneficiary of know-how has the duty to pay the communicant, consisting of annuity payments, the royalties that the turnover resulted from use of the know-how involved.
Parties may choose the law applicable to the contract. If you have not made a contract and will be subject to the law in force at the Who communicate the know-how with the rules of application necessary for the company location.
* Example: by reference to the same legal regime in force in the Andean countries, due to regulations of the Andean foreign investment code in 1992, parties to a contract know-how contributed to the Andean capital of a company, not allowed to communicate to the improvement of know-how in their use. This is a standard application required.
International consulting engineering contract
This contract has an economic definition in literature plastic. Economic doctrine defines consulting contract as representing the way in which capital is transformed into intelligence united investment objectives.
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Engineering consulting contract has emerged as a practical imperative. Beneficial investment to achieve a particular investment objective should be to organize an office staffed with own specialists’ first hand that investments seeking to achieve. This concern the diversion route is unprofitable assuming the principal beneficiary of a service organization of business and it's very expensive for the hiring of specialists for an activity which essentially temporary investment after project completion shall redistribute or fired. For this reason more investment and more beneficiaries turn to the services of specialists organized into specialized engineering consulting companies’ even fields.
Engineering consulting contract requires the consultant to recipient transmission of intellectual knowledge, and profit made on the recipient of numerous customer benefits aimed to achieve an investment in optimal conditions.
It is very difficult to define precisely the work of consulting engineering activity. Unanimity is estimated that accompanies consulting work during the design of investment and that engineering work that accompanies the execution phase of commissioning and use of that investment.
Consulting phase beneficiary is obliged to communicate data consultant - even a confidential nature: financial resources, investment interest, investment prospects, which are able to familiarize the consultant with specific investment.
The consultant is required to maintain the confidentiality attributes on these data and perform measurements, laboratory tests, drilling, testing of materials and equipment, finalized phase of counseling, advice to the beneficiary on the optimal placement of investment, the choice of materials and supplies, then on the choice of manufacturer.
Later in the engineering phase, the provider aims to observe how the manufacturer of investment project and participate, together with the manufacturer, the reception intermediate and final reception of the target, appreciating and demanding remedy their defects appeared and participated in laboratory samples.
A first question which arises in connection with consulting engineering contract is the payment provider and consulting engineering. Payment knows three systems:
• Cost + fee system;
• The hourly time unit;
• Royalties system.
System per unit time hourly pay per hour implies establishes and quantifies the number of hours supplied by the provider. This system is less used and if used, usually this happens for small scale works.
The system used is cost + fee. It involves disbursement of all useful and necessary expenditures made in performing the contract - travel at investment, drilling, laboratory tests, etc., plus the fee prescribed in the contract.
Royalty system is widely used. It is preferred only by some large companies and consulting engineering. This system consists in determining a percentage of the final amount of investment determined at the conclusion of the contract and regulated in terms of the
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amount put into operation, the operation of that investment.
A second problem that arises in connection with consulting engineering contract is its regulation. Engineering consulting contract is a complex contract, which is unnamed and has no regulations in terms of national legislation and even internationally.
It uses very standard contracts developed by the International Association of consulting engineers on areas: in chemical, petrochemical industry, energy industry.
Practice in terms of national court trying the regulation by analogy. A first attempt was to reduce the engineering consulting contract term contract, considered as representative of the beneficiary's provider. The solution is incorrect, because the trustee is empowered to sign legal documents on behalf of principal (representative), while engineering and consulting provider commits acts of priority materials: calculations, measurements, drilling, laboratory samples. A second attempt was to reduce contract engineering and consulting on corporate contracts. Neither this attempt does support the client that the contractor has an obligation of result. He must make a paper plate to the customer, while engineering and consulting provider bound by means of due diligence, execution of work returning manufacturer - the latter being an entrepreneur. Provider of consulting engineering aims but how that work is performed.
Therefore it is necessary to develop specific relevant regulations. The UNCTAD (United Nations Conference on Trade and Development) has tried developing a guide for engineering and consulting contracts, but has only facultative application.
In conclusion, whenever the provider and recipient have their special seat in the State, that contract has an international character, the parties may choose the applicable law and if they did not, the answer is that the majority of the practice of contract law in force obedience where the investment is typically based beneficiary. Rarely practice of the provider under contract law, but in that case comply with the rules of application necessary investment venue.
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Italy
3.3. Concession procedures in Italy National legislation
The Italian current national regulations on water use are based on two fundamental regulatory instruments:
. the Royal Decree n. 1775 of 1933 regulating public water use: on waters specifically deals with the rules on public water concessions, and, despite some evident limits, it highlights the need to favor certain types of water use according to their relevance for the economic life of the country. So the Royal Decree 1775/1933 represents the basis of the administrative procedures for granting public water diversion concessions by the competent authority;
. the environmental Consolidation Act n. 152 of 2006 that implements the EU Water Framework Directive and deals with the quantitative and qualitative protection of water, as well as the protection of aquatic ecosystems. The provision streamlines, rationalizes, coordinates and clarifies the environmental laws in six key sectors, subdivided in 5 chapters:
. procedures for the strategic environmental assessment (SEA), for the environmental impact assessment (EIA) and for the integrated environmental authorization (IPPC);
. soil protection, fight against desertification, protection of water against pollution and water resources management;
. waste management and reclamations;
. air protection and reduction of emissions to the atmosphere;
. environmental damage.
The environmental code amends the Royal Decree 1775/33 and includes clauses necessary to condition the grant of concessions to the sustainable use of water. Water use concession is always limited in time and is bound both to the need to guarantee the quantitative balance, and to the need to achieve quality standards, according to what has been planned for the catchment basin. Therefore, the grant of concessions shall take planning into account; that is why water withdrawals are granted provided that:
. they do not endanger the maintenance or the achievement of the quality objectives established for the concerned waterway;
. the reserved flow and water balance are guaranteed;
. the reuse of purified sewage water or rainwater is not possible, or that even if it is possible, the reuse is not economically sustainable.
Basin planning, of which the Basin Authority is in charge, is corroborated by the regional detailed planning through the Water Protection Plan (WPP), under regional competence. The Water Protection Plan, already introduced by the legislative decree n. 152 of 11th May
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1999 and then adopted by the new environmental code, is a programmatic document that should contain the regional programmatic directions on pressure limitation, water saving, aquatic ecosystems safeguard.
In Italy, the only legal classification of hydroelectric plants is given, according to their average annual rated capacity, by the rules that also govern the procedures to grant public water concessions for hydroelectric use. Art. 6 of the Royal Decree n. 1775/1933 define the plants with an installed capacity greater than 3000 kW as large diversions of public water for hydroelectric use. All the other plants, with an average annual capacity lower than or equal to 3000 kW, are small diversions of public water for hydroelectric use.
The authorization to build hydroelectric plants to generate hydroelectric power is governed by the legislative decree n. 387/2003 which adopted the EU directive on renewable energies n. 2002/77/EC and which delegated such function to the Italian regions.
The procedure provided by the decree is a unified procedure that comprises all the various authorizations and permissions issued by the competent bodies and adopt two fundamental objectives of the over-mentioned EU Directive:
. the pulling down of non-technical obstacles to the increase of power generation from RES (Renewable Energy Sources);
. the streamlining and speeding up of administrative procedures.
The decree n. 387/2003 consists of a single procedure for all construction types of renewable sources (solar, biomasses, water, etc.) and provides for the employment of the Conference of the Concerned Bodies (“Conferenza dei Servizi”) during which, in one or more meetings, all competent public bodies are required to express their opinion; such conference ends with a rejection or a concession grant. The course of the conference of the concerned bodies is clearly regulated and well defined by law no. 241/1990, which sets examination time and procedures of the public administration, guaranteeing that private citizens can access and view the concerned documents. The unified procedure was designed to group all the different administrative procedures concerning the construction of a power plant supplied by renewable sources and, as regards small-scale hydropower, to join, at least, the concession procedure of water diversion for hydroelectric purposes to the construction and use procedure. So, in case of hydropower, the firm that wants to build the power station should submit all the necessary documents to obtain the water diversion concession together with a complete project of the plants and of all the works and the infrastructures directly connected and functional to the hydroelectric power station, such as long distance power lines. Within 30 days from the receipt of the above-said application, the deputed office should start the procedure provided for by decree n. 387/2003 and summon the conference of the concerned bodies.
It is advisable to focus the attention on the following regulatory principles introduced when the decree came into force (2003):
. the works to build the plants and the works connected and the infrastructures necessary to build and to use the plants shall be considered of public usefulness; they cannot be deferred and are urgent;
. the construction and the use are subject to a single authorization, in obedience of the current regulations on the protection of the environment, of the landscape and of the
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historical and artistic heritage;
. the authorization is issued following a unified procedure, in which all concerned Administrations participate, and it is carried out in obedience of simplification principles and according to the law n. 241 of 7th August 1990 as amended and supplemented.
The first point is of fundamental importance because it recognizes the importance to promote the renewable resources for power generation and the consequent reduction of CO2 released, and places them on the same level of large power plants supplied by conventional sources (that employ fuel oil, methane and coal), to which the principle of public usefulness has applied since the first nationalization of the Italian power sector, occurred with the establishment of ENEL (National Body for Electric Energy) in 1962.
Before the decree came into force, Italy did not have a unified procedure for the renewable sources and, according to the plant characteristics, it was necessary to acquire more favorable opinions, each of which was necessary to assess the plant according to regulatory specifications, and each of which was issued by a different Administration, with consequent delays due to the fragmentation of the individual administrative procedures. Moreover, thanks to the decree n. 387/2003, also the procedures relating to the assessment of the connected works, such as the construction of a long-distance power line, are carried out during the same conference of the concerned bodies that must end within 180 consecutive days from the date in which the application is submitted.
One of the general principles of the environmental code is the following: “every legally significant human activity shall comply with the principle of sustainable development, in order to guarantee that the fulfillment of the needs of present generations will not compromise the quality of life and the chances of future generations”. For a long time, Italian regulation has provided for the preventive assessment of the environmental consequences deriving from the construction and operation of any significant work, through the carrying out of the Environmental Impact Assessment (EIA) procedure. In case of small- scale hydro plants, the Regions are in charge of all the aspects concerning the environmental integration of the plant, under Legislative Decree 152/2006 and the recent Legislative Decree n. 4/2008. Depending upon the plants characteristics (and the supposed environmental impact) the Decree 4/2008 makes provision for the projects to undergo either the EIA procedure (regional or national) or the screening procedure (Verification procedure) to assess the need of further in-depth study (i.e. if there is the need of a complete EIA procedure). In Annex II, III and IV the works and plants are catalogued which have to undergo respectively the national EIA procedure, the regional EIA procedure and the Verification procedure. For the works and plants of the III and IV annexes, which are located, even if partially, within a protected area (as defined under the law n. 394/91), the dimensional standards to establish the procedure to follow have to be halved. The 4/2008 L. D. specifies also the criteria for the Verification Procedure (Annex V) and the contents of the Environmental Impact Study (Annex VII).
The criteria to follow in the verification procedure to assess if a plant has to be subjected to EIA are given as follows (Annex V):
. specific design features (work size and its production cycle);
. localization of designed plant, considering protected areas (Sites of Community Importance or Special Areas of Conservation by 79/409/CEE and 92/43/CEE directives) or sensible areas because of lack of natural resources, density of population, historic
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and cultural significance;
. potential impact of the plant (duration, frequency, reversibility, probability, etc.).
Kind of work which require the verification Authority delegated
Small Hydro Plant with a diversion of water with Regional Offices capacity over 200 litres/second if it is not in a protected natural area Small Hydro Power Plants with power over 100 Regional Offices kW Hydroelectric plant situated within a Sites of Regional Offices Community Importance (SCI) Aerial Electric pipeline with voltage > 100 kV and Regional Offices length > 3 km Table 6 – Kind of works which require the Screening Procedure.
Kind of work which require directly the EIA Authority delegated
Hydro Power Plants having a power capacity over Environment Ministry 30 MW Aerial Electric pipeline with voltage > 150 kV and Environment Ministry length > 15 km Aerial Electric pipeline with voltage > 100 kV and Regional Offices length > 10 km Underground Electric pipeline with length > 40 km Regional Offices
Table 7 – Kind of works which require directly the EIA. In particular, the hydroelectric plants exceeding 100 kW of power are subject to the Screening procedure according to the Legislative Decree 152/06. The verification is coordinated as follows:
. the applicant begins the procedure by delivering the preliminary project and the environmental preliminary study to the competent authority and a public notice of the application must be published on the regional Official Gazette. The documentation to be presented should in any case contain the minimum standards of IV annex of the 4/2008 L.D.
. a project description containing information about its features, localization and size;
. a description of necessary measures to avoid, to reduce or compensate its negative impacts;
. necessary data to identify and to evaluate the most important impacts for environment and cultural heritage, which project can produce either during its construction or during its running;
. a brief description of the alternative options considered by the design proposer, including so called zero option, specifying the main reasons of the best choice from environmental impact point of view;
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. a description of specified impact monitoring measures, to offset unexpected negative impacts at the right time and to allow competent authority to be able to take right corrective measures;
. a non-technical abstract about size and running features of the project and about data and information of the EI study, including its graphic works.
. Consultation: within 45 days from publication any interested subject can present remarks and objections.
. According to verification’s standards (V annex of decree) and the results of consultation, the competent authority has 45 days to express a positive or negative opinion. In case the competent authority decides the project must not be subjected to EIA procedure, the verification procedure is concluded. Otherwise, starts the EIA procedure.
The environmental impact assessment (EIA) procedure is coordinated as follows:
. definition of environmental impact (EI) study’s contents (max 60 days); this is an optional phase and the proposer can ask for to the competent authority to define the contents of EI study, details and methodologies to adopt;
. project submission and publication: by this moment it starts the computation for the duration of all the subsequent phases;
. check of documents by the competent authority (max 30 days from start);
. consultation phase: within 60 days from the submission any interested subject (either private or public) may access to the documentation and present observations to the project. The competent authority can choose whether to call for a public inquiry or a more synthetic form of public participation. During this period the competent authority must acquire and evaluate all the needed documentation;
. after the consultation phase the proposer may apply for presenting additional documentation (max 30 days from start). The proposer has a maximum of 120 days to present documents integration;
. within 120 days from the project submission the competent authority may request for additional documents. The proposer has a maximum of 120 days to present documents integration;
. in case of a substantial modification of the original project, the competent authority may publish the new documentation and organize the subsequent participation phase (60 days from submission of integrations);
. after the conclusion of the precedent phases, the Competent Authority has 90 days for the decision;
. delivery of the Competent Authority judgment and monitoring.
The EI study is written according to standards of IV annex of the 4/2008 L.D. and taking into account the results of conference phase (in the case the project has already undergone the verification; the content of the environmental study might probably be enriched):
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. project description containing information about its features, localization and size;
. description of measures to avoid, reduce or compensate its negative impacts;
. necessary data to identify and evaluate the most important impacts for environment and cultural heritage, which the project can produce either during its construction or during its running;
. a brief description of the alternative options considered by the project proposer, including the so called “zero option”, specifying the main reasons of the best (environmental) choice a description of monitoring measures.
As regards to the other environmental authorizations, the 4/2008 L.D. includes a clear reference regarding a need for coordination and simplification of procedures. Indeed the EIA procedure can replace or coordinate all authorizations, agreements, grants, licenses, mandatory advice, permissions and approvals, of environmental concern. To this end both the preliminary environmental study (requested for the verification procedure), or the full environmental impact study (requested for the EIA), must contain the technical annexes required for the Integrated Authorization provided by the Italian legislation (in acknowledgement of the Integrated Pollution Prevention and Control strategy, introduced by 96/61/CE).
For the construction and operation of hydroelectric power with less than 100 kW of power, not located (even partly) within Protected Natural Areas, are subject to the Declaration of Activity Initiation. Where necessary, the Incidence Assessment procedures will be carried out. In case the project is to be executed, even partially, within the system of Protected Natural Areas, it shall be submitted to regional EIA procedure, which encompasses and replaces the Declaration for Activity Initiation (DIA). The EIA procedure encompasses, where necessary, the Incidence Assessment procedure.
The Legislative Decree no. 387 of 2003, Article 12, has introduced a major simplification concerning the authorization procedures for plants using renewable sources. However, the same decree foresees the immediate adoption of Guidelines that precisely illustrate modalities and technical criteria to be applied to the procedures for construction and operation of RES plants, with particular reference to criteria for the identification of plant construction sites.
The national Guidelines regarding the Single Authorization proceeding has been published only on 18th September 2010.
As a consequence of the lack of a general, national, and unitary model, the Regions have produced – since the year 2003 until nowadays – an array of disciplines with differentiated provisions. Actually, the regional legislation must be aligned with national Guidelines within 90 days from their publication on the Official Gazette.
Regional legislation – Veneto Region The legislative decree no. 387/2003, which adopted the EU directive on renewable energies no. 2002/77/EC, was implemented for the first time in the Veneto Region through the adoption of the procedures established by the regional by law no. 1000/2004. The application of these procedures has shown over the years some critical aspects especially
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related to the environmental impact assessment.
The Veneto Region began a process of revision of procedural rules relating to water diversion concession and established new rules and new technical guidelines with the regional by law no. 2204/2008 and no. 4070/2008.
In particular, the regional by law no. 2204/2008 has identified an office (the Energy Project Unit) responsible for the coordination of the other regional structures. The Energy Project Unit receives and transmits to the competent offices all the applications of regional competence in order to complete the authorization process. In accordance with the legislative decree no. 387/2003, it also defines the scheme of the administration procedure regarding the authorizations for the installation and operation of plants for power generation using renewable sources. With reference to the applications for water diversion concession, the regional by law n. 2204/2008 states that the competence of the administrative procedure is regional in the case of hydroelectric plants with power over 100 kW, otherwise the competence is delegated to the local Municipality; it also states that the regional structure responsible of procedure is the Directorate of Soil Protection.
Due to changes occurred on environmental impact assessment with the regional law no. 308/2009 and no. 327/2009, the regional by law no. 1609/2009 has replaced the administrative procedures for water concession diversion previously defined by the regional by law no. 4070/2008. In particular it refers to administrative procedures of regional competence, in accordance with the legislative decree no. 387/2003.
It states that the competence of the administrative procedure is regional in the case of hydroelectric plants with power over 100 kW, otherwise the competence is assigned to the local Municipality. The procedure to grant the water diversion concession and to assess the environmental impact is included into the unified procedure established by the legislative decree no. 387/2003. The unified procedure has to be completed within 180 days. The duration of the water diversion concession is equal to a minimum of 20 years; the concession period can be up to 30 years for hydropower plants with nominal power exceeding to 7 MW.
The administrative procedure is defined as follows: the application for water diversion concession, the final draft of the work and, if necessary, the documentation required for the environmental impact assessment must be presented to the Regional Secretariat for the Environment and Territory and finally to the Directorate of Soil Protection. The Directorate of Soil Protection communicates to the applicant the start of the administrative procedure and designates the person responsible of the whole procedure.
The Directorate of Soil Protection also verifies the completeness of the acts attached to the application and sends a copy of the documents related to the application for water diversion concession to the local Basin Authority and to the Civil Engineering Department. The reference to the documentation required by the legislation on water concessions is the art. 6 of the R.D. no. 1775/1933, the art. 9 of the R.D. 1285/1920 and the ministerial decree of 16th December 1923.
The administrative procedure for water diversion concession is carried out in accordance with the art. 7 of the R.D. n. 1775/1933. A public notice of the application must be published on the regional Official Gazette by the Civil Engineering Department and within 30 days after the date of publication, interested parties may submit competing applications.
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Competing applications must be accompanied by the same documentation required for the first application; the competing applications are transmitted to the Regional Technical Committee which gives its opinion about the application to be preferred, based on the criteria established from the art. 9 of R.D. 1775/1933.
The Directorate of Soil Protection notifies the opinion of the Regional Technical Committee and sends the documentation of the chosen project to the local Basin Authority: within 40 days from application receipt, the local Basin Authority must express its binding opinion to the competent examining office and state whether the use is compatible with the Regional Protection Plan.
In case of a positive opinion of the local Basin Authority, the Directorate of Soil Protection acquires the whole documentation related to the works and, if necessary, starts the administrative procedure related to the environmental impact assessment to obtain the opinion of the Regional Commission for EIA.
The Directorate of Soil Protection convenes the Conference of the Concerned Bodies, in accordance with the law n. 241/1990 and issues a single authorization as required from the legislative decree n. 387/2003.
Finally the Civil Engineering Department draws up of the concession rules containing the obligations and the duties connected to the management of the granted concession.
The regional by law no. 2834/2009 defines the sets of threshold values under which the Screening procedure to verify the environmental impact is automatically satisfied. If one of these values is not respected, the verification procedure shall be regulated by the legislative decree no. 152/2006 and by the regional law no. 327/2009. In particular the regional law no. 327/2009 states that small hydro plants with a diversion of water with capacity over 200 liters/second and with power over 100 kW require the screening procedure in accordance with the legislative decree no. 152/2006.
Parameter Threshold values
max 1 MW Power to grant min 1,3 Ratio between mean annual discharge and MIF min 40 % Percentage of conduct located on roads or trails max 3 Ratio between maximum and mean discharge max 3 km Length of power line outside Presence of priority habitats (Natura 2000) outside Presence of parks outside Presence of natural reserves
Table 8 – Threshold values to verify the applicability of the Screening Procedure in the Veneto Region
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The regional by law no. 2834/2009 also defines the administrative procedure for water concession diversion when the competence is delegated to the local Municipalities.
Indeed, in the case of hydroelectric plants with power over 100 kW the competence of the administrative procedure is assigned to the Regional Authority, otherwise to the local Municipality.
In the last case, the application for water diversion concession, the final draft of the work and, if necessary, the acts concerning the assessment of environmental impact must be presented to the local Municipality.
The Municipality communicates to the applicant the start of the administrative procedure and designates the whole procedure responsible. The competent office also verifies the completeness of the documents attached to the application and in the absence of one or more documents sets a deadline to allow the applicants to submit the missing documentation.
The Municipality sends the documentation to the Civil Engineering Department or to the Province of Belluno, in accordance to the regional by law no. 411/2009. The reference to the documentation required by the legislation on water concessions is the art. 6 of the R.D. no. 1775/1933, the art. 9 of the R.D. 1285/1920 and the ministerial decree of 16th December 1923.
The ministerial decree of 16th December 1923 prescribed the rules to draw up outline and working plans that shall accompany the applications for water diversion, dividing them into large and small diversions.
Here follows a summary of the contents of “small diversion” applications for hydroelectric use with an average capacity not exceeding 3.000 kW:
. Detailed report: the report shall demonstrate that the proposed works are innocuous, as regards public water regime and third parties’ rights, and shall prove that diverted waters will damage other existing works or assets in general, neither due to overflows nor due to filtration. The report shall also include the description of the proposed works. It will also point out the nature, the shape and the dimensions of the weirs. It shall include the necessary geognostical and hydrographical information regarding the basins that may be used to collect water, and, the water expected volume to be stored, together with pluviometric data. It shall also indicate the capacity that can be obtained with the diverted water. An estimated cost for each type of work and for all works on the whole shall be added, as well as a financial plan.
. Chorography: chorography shall be adequately extensive to allow a reliable positioning of the diversion with reference to the well-known neighboring places; it shall include the waterway intended for diversion, its surroundings, the drainage basin or basins to use for water collection, the pieces of land to cross with the designed works and their location.
. Topographic plan: the topographic plan shall indicate which works are going to be executed in the river-bed and in the public water basin. This plan shall comprise the surroundings that may have links with the works.
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. Longitudinal and transverse profiles: the longitudinal and transverse profiles of the waterway to be diverted shall represent the lines of the bottom, of the river-bed banks and of the embankment.
. Plans of the main works of art: the main works of art shall be drawn to scale with the numerical indication of dimensions and altimetric elevations. The small works of art may be represented with drawings referring to their real dimensions, measured in relation to the plant to be carried out.
The administrative procedure for water diversion concession is carried out in accordance with the art. 7 of the R.D. n. 1775/1933. A public notice of the application must be published on the regional Official Gazette by the Civil Engineering Department and within 30 days after the date of publication, the interested parties may submit competing applications.
Competing applications must be accompanied by the same documentation required for the first application.
If the Civil Engineering Department doesn't receive competing applications, the Municipality sends the documentations of the project related to the water withdrawal to the local Basin Authority: within 40 days from application receipt, the local Basin Authority must express its binding opinion to the competent examining office and state whether the use is compatible with the Regional Protection Plan. Otherwise, the competing applications are transmitted to the Regional Technical Committee, as provided by the regional by law n. 1609/2009. The Regional Technical Committee gives its opinion about the application to be preferred, based on the criteria established from the art. 9 of R.D. 1775/1933.
The Municipality receives the opinion of the Regional Technical Committee and sends the documentation of the chosen project to the local Basin Authority.
In case of a positive opinion of the local Basin Authority, the Municipality acquires the whole documentation related to the works and, if necessary, starts the administrative procedure related to the environmental impact assessment, which is a regional responsibility.
The Municipality convenes the Conference of the Concerned Bodies, in accordance with the law no. 241/1990 and issues a single authorization as required from the legislative decree no. 387/2003.
The regional by law no. 1664/2010 provides rules for the submission and publication of applications for water diversion concession.
The application for grant may be filed by any entity, private or public.
The application for the authorization to build hydroelectric plants submitted in accordance with the Legislative Decree no. 387/2003 must be presented to the Regional Secretariat for the Environment and Territory or, according to the regional by law no. 2834/2009, to the local municipality in case of construction and operation of hydroelectric power plant with less than 100 kW of power.
As for the Province of Belluno, the jurisdiction is assigned to the Province as established through the regional by law n. 411/2009.
The competent office receives the request and verifies its eligibility for evaluate, where
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necessary in consultation with the Civil Engineering Department, if there are incompatible elements with regard to hydraulic safety and protection of water resources. In this case the competent office provides for the rejection of the application and the notification to the applicant in accordance with the art. 10 of the Legislative Decree no. 241/1990.
The office also verifies the documents completeness attached to the application and in the absence of one or more documents, it sets a 15 days deadline in order to allow the applicants to submit the missing documentation. After that time, the office issues a declaration of non-admissibility or admissibility of the application and a notification to the applicant in accordance with the art. 10 of the Legislative Decree no. 241/1990. The additional documentation, however, won't introduce changes to the project attached to the application.
For diversions related to hydroelectric purposes, the Regional Secretariat for the Environment and Territory, in accordance to the regional by law no. 1609/2009, sends a copy of the documentation to the Civil Engineering Department.
A public notice of the application must be published on the regional Official Gazette by the Civil Engineering Department and within 30 days after the publication date, interested parties may submit competing applications. Competing applications must be accompanied by the same documentation required for the first application.
The application’s publication process is applied to all applications submitted in competition and received within 60 days after the first application. The competing applications received after that period shall not be published.
With regard to applications submitted in competition, the Civil Engineering Department verifies the eligibility of the applications for evaluate, where necessary in consultation with the Regional Secretariat for the Environment and Territory, if there are incompatible elements with regard to hydraulic security and protection of water resources. In this case it provides for the applications rejection and the notification to the applicants in accordance with the art. 10 of the Legislative Decree no. 241/1990. The Civil Engineering Department also verifies the completeness of the documents attached to the applications and in the absence of one or more documents; it sets a deadline of 15 days in order to allow the applicants to submit the missing documentation. After that time the office issues a declaration of non-admissibility or admissibility of the applications and a notification to the applicants in accordance with the art. 10 of the Legislative Decree no. 241/1990.
The verification of completeness of the documentation should be conducted as soon as possible and without recourse to the opinions of subjects outside the administration proceeding.
After this deadline, the competent office collects all the competing applications received and accepted and it proceeds with a single administrative procedure through the publication in the Municipalities located in the project area of a specific order issued by the Civil Engineering Department. The purpose is to allow the submission of comments or objections within the subsequent 30 days. The notice also indicate when the sites prospective diversions’ sites are going to be inspected. All administrations and stakeholders interested in the proposed diversion concession are invited to take part and to submit written remarks. During the site inspections, the relevant public entities’ opinions shall be collected.
When the visits are terminated, the Civil Engineering Department prepares a minute in
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which are reported the facts found, objections, comments and counterclaims. The Civil Engineering Department also compiles a comprehensive report about the preliminary investigations, highlighting the characteristics of the different applications submitted in competition (average/maximum flow and annual derived volume, period of withdrawal, type of use, returned waters, technical and financial guarantees, etc) in the perspective of a rational use of water resources. The Civil Engineering Department also sends the compiled report and a copy of the projects attached to any competing applications to the Regional Technical Committee, as provided by the regional by law n. 1609/2009. The Regional Technical Committee gives its opinion about the application to be preferred, based on the criteria established from the art. 9 of R.D. 1775/1933.
Moreover the environmental code (art. 96 of the Legislative Decree no. 152/2006) states that the applications regarding both large and small diversions shall be sent to the Basin Authorities having the territorial jurisdiction; within 40 days from application receipt (for small diversions), such Authorities must express their binding opinion to the competent examining office and state whether the use is compatible with the Protection Plan.
3.4. Comments on articles in Italy
Costs . Extra-fee for Coastal Bodies: it is due for plants with average rated capacity over 220 kW; it shall be paid to Municipalities and Provinces where the territory overlooks a stretch of diverted waterway from the end of the intake backflow up to the tailrace. The plant operator must pay an amount fixed by a decree of the director of the Italian Public Property Agency and updated every 3 years.
. Extra-fee for Mountain Catchment Basins (“Bacino Imbrifero Montano – BIM”): it is due for plants with an average rated capacity over 220 kW. The concept of Mountain Catchment Basin was introduced by Law no. 959/1953 and refers to "the territory bounded by a mountain or hilly belt that acts as a divide, located above a given absolute height set for each basin". The Municipalities comprised by the catchment basin enjoy all the benefits, singularly or in association. The quantification is carried out by the Ministry of Environment and is updated every 3 years.
. Environmental compensation in protected natural areas and for the protection of the ichthyofauna: in case of works that concern park areas, the Park Coordination Territorial Plans often require the drawing up of agreements with the concession holders; these agreements may also comprise compensation works or indemnification if the damages caused by the execution of works cannot be restored by the means of compensations. Similar agreements are also required by Municipalities or by Consortia that manage the diverted waterway despite the lack of legal rules that authorize such request. The Fishery Management Plans often provide for contributions that must be borne by the concession holders for surface public water diversion in connection with the protection of the ichthyofauna. Such levy may turn into a further annual fee, collected by the offices in charge of the ichthyofauna protection.
After, there are the ordinary expenses coming from the administrative procedures:
. Examination expenses: it is a cost of the applicant.
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. Hydrographic contribution: scheduled by the Consolidation Act, it is 1/40th of the state fee. As it is a contribution, it is both duty and tax. The contribution is compulsory, like duties, and due for a specific service, like taxes. It is due from all those submitting a new application or a renewal for public water concession. Now it also falls within the competence of the Regions which may set a different rate.
. Publication expenses: to publish the application on the Official Gazette and on the Journal of Legal Notices.
. State fee: concession holders shall, therefore, pay the relevant annual state fee, which, for hydroelectric use, is quantified according to the average annual rated capacity granted.
. Caution money: concession holder must prove that he/she paid it during the rules signature; it is a guarantee for the obligations that the grantee has assumed towards the Administration for the expenses that may occur in connection to the concession that has been granted, such as, for example, in case of executions ex officio.
. Registration expenses: rules oblige the grantee to pay registration expenses to the Italian Tax Agency. The amount is equal to 5‰ of the fee due for the whole concession term calculated in the grant year. This figure must be added with the fixed amounts of the Italian Tax Agency and the stamps necessary to prepare three copies of the documentation required for registration.
. Testing charges: always borne by the applicant, these charges are necessary to test the diversion and its plant.
Concession grant criteria These criteria are included in the Consolidation Act amended by Legislative Decree 152/06 which focuses on resource conservation, water balance and environmental protection. The fundamental elements of concession grant are the creation of the water balance and the water economy analysis, but these can only be considered as essential points of reference for the review of concessions in relation with compatibility among the multiple uses of waters. The more extensive review considers the compatibility of basin uses: water use cannot disregard the water body conditions analysis, which is not only a qualitative problem but also “environmental”.
The criteria are as follows:
. to check that the diversion to grant does not jeopardize the maintenance or achievement of quality objectives set for the waterway proposed for diversion;
. to check that the reserved flow and the water balance are maintained;
. to check that to use purified sewage or rainwater is not economically and technically sustainable;
Focus on principles such as conservation, reuse and recycle of water resources identifying, when possible, the qualitative characteristics of returned waters within the concession rules.
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Criteria for evaluating competing applications Granting concession for state properties that can be exploited from the economic point of view shall always be preceded by regular competition, even though the law does not expressly provide for it. Competing applications are technically incompatible with which mutually interfere due to overlapping or interception on naturally flowing waterways.
The Consolidation Act, with the amendments stated by the new environmental code (Legislative Decree 152/2006), identifies the main criteria to consider when evaluating competing applications: the competent administration shall choose to grant concession to one application and shall reject one or more competing applications within the time set by the rules. The most important criteria for the chosen are:
. the application will be chosen, on its own or in connection with other granted or requested uses, if it represents the most rational water use in relation to the following criteria:
. qualified resources are used for drinking water;
. real possibility to better exploit the sources with relation to use;
. qualitative and quantitative characteristics of the water body subject to collection;
. quantity and quality of returned water compared to withdrawn water.
. The application that, for the same type of use, guarantees that more water will be returned in relation to the quality objectives of water bodies (identified by Water Protection Plans) will be chosen.
. The application that complies and is equipped with an environmental management system, recognized under the UNI EN ISO 14001 rule or registered under the EMAS regulation, will be chosen.
. If the applications share the over-mentioned conditions, the application that offers higher technical, financial and economic guarantees of immediate execution and use, it will be chosen.
. If conditions are absolutely equal, the first application submitted in chronological order will be chosen.
In this general framework adopted in order to make a choice, the national rule, nevertheless, provides for special cases, such as making two competing applications compatible or choosing applications that have been submitted at a later date but that the examining office deems more relevant for the public interest.
The rights and obligations of parties The rules contents are still those expressed by the royal decree n. 1285 of 1920 which, effectively, has remained in force as enacting regulation of the Consolidation Act; they are:
. the type of diversion, the quantity of water to divert in case of constant volume and the
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maximum quantities that cannot be exceeded and the average quantities on which fees are established, in case of variable volumes;
. the drop of water surface from intake to tailrace, heads according to which fees are established, the modes and conditions of water collection, regulation, diversion, main, tailrace and drainage;
. if temporary dams or cross-dykes are to be built, the special conditions required by the nature of the work and of the waterway, and in particular the periods of time during which such works can be kept or must be removed and the periods of time during which they can be restored by means of a simple authorization issued by the Civil Engineers;
. the amount of the annual fees and the starting date for the payment of such fees to the State, the amount of the extra-fee for coastal bodies and alpine communities;
. the term of concession, the terms by which the grantee shall, in case of small diversions, the obligation to remove the works to restore the river-bed, banks and embankments when, at the expiry date of the concession, for any reason, the State does not intend to make use of its right of keeping them without consideration;
. in case it is deemed advisable, the characteristics of the electric current to generate;
. the caution money to deposit, as well as the amount necessary for surveillance and testing charges of the relevant works. Both the caution money and the total expenditure must be deposited before the rules are signed;
. the domicile choice in the municipality where the diversion mouth is located or the stretch of public water where the grantee wants to locate the factory, that is in one of the municipalities where he/she will use the water to divert;
. in case it is deemed advisable, the rules relating to the sale tariffs of diverted water or of the energy generated with it.
The examination report, together with the proposed concession rules, is sent to the financial body in charge of the collection of state fees; Law 112/98 identified the Regions and the hydraulic authority as such body. These two bodies finally make sure that the examination has been carried out correctly, both from the financial point of view, with the imposition of fee, and from the technical point of view as regards the hydraulic compatibility of the proposed work. If the Region and the hydraulic authority express a positive opinion, the competent Administration that issued the conditions of assignment must register them at the Italian Tax Agency within 20 days from signing. The competent administration, after registering the rules, issues the concession decree, that approves the rules agreed by the grantee, and puts it into force. The examination for public water concession granting ends with the test of the works and with the simultaneous authorization of use.
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Austria
3.5. Concession process in Austria
SMALL HYDROPOWER IN AUSTRIA – FACTS AND FIGURES Currently, more than 2,600 small hydro power plants are in the public supply network in Austria. They cover thereby about 9 percent of Austria's electricity production (Kleinwasserkraft Österreich; 2010).
Under Austria's electricity labeling regulations, all electricity suppliers are legally obliged to indicate on their bills the sources of the power they deliver to consumers. However, they are not required to disclose information on the extent to which the green power they supply is subsidized. The support payments are usually financed by electricity consumers and taxpayers.
As renewable energy are provided in a variety of forms (supported and non-supported, old and new generating stations, hydro, photovoltaic and other technologies), suppliers have widely differing approaches to marketing green power (eControl, 2010a).
The legal basis of the renewable energy support payment system is the Ökostromgesetz (Green Electricity Act, FLG I no 149/2002 as amended by FLG I no 44/2008), while the feed-in tariffs are determined annually by the Ökostromverordnung (Green Electricity Order) (eControl, 2010b).
A number of requirements must be met for renewable generating stations to receive support in the form of renewable feed-in tariffs. A variety of permits and approvals must also have been obtained, and some other steps taken. Full details can be found in the guide to funding for renewable generating stations. Besides support in the form of renewable feed-in tariffs, renewable power plants are eligible for investment grants and special provincial government grants. The Austrian federal government also occasionally provides special funding — one example was the Climate Change and Energy Fund photovoltaic funding Programme, run in 2008 and 2009 (eControl, 2010b).
Old Situation in Austria (feed-in tariffs) In principle the old “Ökostromverordnung” (Green Electricity Order), which has regulated the feed- in tariffs, was distinguished in the following categories of small hydropower plants:
. Existing hydropower plants, . Plants, which are new build . Revitalized plant, . Revitalization > 50 % (classified as new plants) . Revitalization > 15 %. The following figure provide an overview of the small hydro power totals in the above mentioned four categories as of 31.12.2008 based on the recognition decisions according to § 7 of “Ökostromgesetz”.
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Approved small hydro power totals (MW) as of 31.12.2008 SHP SHP SHP SHP SHP revitalized revitalized total existing new (>50%) (>15%) 2008 1179,3 940,7 152,1 23,5 63,0
Table 9 – Approved small hydro power totals by category, as of 31.12.2008 (Ökostrombericht 2009, e-control)
Figure 1 – Small hydro-power totals for existing unchanged, revitalized (incomplete) and new small hydropower plants on the key date 12.31.2008 (Ökostrombericht 2009, e-control)
New small hydropower plants At the end of December 2008 a total of 152.1 MW are accepted as new small hydropower plants. Some of the projects are dimensioned, due to the low power limit for a funding claim, lower than theoretically possible, which is not welcomed for the energy industry perspective, as the full power generation potential is not exhausted (Ökostrombericht 2009, e-control Austria). New small hydro plants have an average plant size of 551 kW. 95% of the plants have a size of less than 2 MW (Ökostrombericht 2009, e-control Austria).
New Situation in Austria (investment grants for rehabilitation/construction of SHPs) End of 2009, the old “Ökostromgesetz” (Green Electricity Order)”, which has regulated the feed-in tariffs, was replaced by the new “Ökostromgesetz Novelle 2009”. In the new legislation the funding system has been changed from feed-in tariff system to investment grants for rehabilitation or new construction of SHP. The investment grant depends on the installed power of the SHP. In case of installed power between 100-500 kW the investment grants is about 30% of the investment costs. The produced electricity has to be sold at market prices.
Authoritative laws and ordinances - EU level . Water Framework Directive Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000
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establishing a framework for Community action in the field of water policy. . Environmental Assessment There are two directives implemented in National Law: The Directive 85/337/EEC, known as 'Environmental Impact Assessment' – EIA Directive and the Directive 2001/42/EC known as 'Strategic Environmental Assessment' – SEA Directive. The Protocol of the United Nations Economic Commission for Europe (ECE) on Strategic Environmental Assessment was adopted during the Ministerial Conference in Kiev in May 2003 and ratified by Austria on 23 March 2010 . Nature Conservation - EU Level The objective of the European nature conservation is the building of a net of protected areas all over Europe called NATURA 2000. The definition of protected areas is accomplished by consistent criteria and contains the areas defined by the Conservation of Wild Birds Directive and the Flora-Fauna-Habitat Directive.
Authoritative laws and ordinances – national level
. National Implementation of the Water Framework Directive The transposition in national law is accomplished by the “WRG” (Water Rights Act) in the amendment of August 29, 2003.
. National Implementation of the EIA Directive The purpose of the (Austrian) Federal Law on the Environmental Impact Assessment (“UVP-G 2000” - EIA Act 2000), Federal Law Gazette No 697/1993, as amended, is to review in a comprehensive and integrative way possible impacts of human activities on the environment before the project is implemented.
. National Implementation of the SEA Directive The introduction of the SEA in Austria took place within the framework of the implementation of Directive 2001/42/EC on Strategic Environmental Assessment (SEA Directive).The requirements of the SEA Directive have been implemented in Austria within the framework of various material laws at federal and provincial levels. Due to the legal situation in terms of competencies the requirements according to the SEA Directive were integrated into various material laws at federal and provincial levels and/or implemented in the form of separate SEA laws at federal and provincial levels. For Hydropower implementation in Austria the only relevant act is the “WRG” (Water Rights Act) including The National Water Management Plan.
. National Implementation of Nature Conservation The accomplishment of national nature conservation is in the responsibility of the nine Regional Governments (each of them has its own Nature Conservation Act).
Basic procedure of the permission process for hydropower implementation
For hydropower implementation there are two separate permission processes based on the WRG (National Law but indirect federal administration due to the Regional Governments) and on the respective Regional Nature Conservation Acts. Additionally, the requirements of the Regional
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Construction Regulations as well as the Regional Energy Acts (e. g. the Stmk. EIWOG 2005) have to be taken into account.
Different to other countries the applicant has only to pay the administration fees for the permissions. There are no concession fees in Austria.
HPP >10 MW EU Water Framework Directive (2000/60/EC) and as transposition into national law the "WRG" (=”Wasserrechtsgesetz 1959”). Claims were also acquired with a 2003 amendment to the WRG § 30 d Directive (EEC) No 92/43 on the conservation of natural habitats and of wild fauna and flora, Directive (EEC) 79/409 on the conservation of wild birds. Additional EIA-G 2000, Directive 2009/28/EG (particularly with Directive 2001/77/EC).
Following the EIA-G 2000 - Z 30 in Annex 1: hydroelectric power plants with a bottleneck capacity of at least 15 MW and chains of power plants with a single bottleneck capacity of 2 MW are defined as EIA projects. A power chain is regarded as a series of two or more hydropower plants without intervening free-flowing sections by a defined minimum length of 2 km. The planning of power plants with a bottleneck capacity of less than 15 MW does not need the approval of EIA-G 2000 (details follow).
HPP <10 MW (SHP): EU Water Framework Directive (2000/60/EC) and as transposition into national law the "WRG" (=”Wasserrechtsgesetz 1959”). The planning application has to be presented to the water planning authority and to the regional nature conservation authority. The procedure is accomplished according to the water rights act (based on the WRG) and the regional nature conservation act - unless "European protected areas” like N 2000 areas are affected - is basis for the procedure. An optional possibility for the planning process is to present an application for a pre-analysis of the water body status in the presumed area of interest. This procedure allows a pre-evaluation of the hydropower implementation (details follow).
However, there are some points that have a view to sustainable water management improvement. A clearer guidance concerning the Habitats Directive, Birds Directive, the Water Framework Directive and the Renewable Energy Directive in relation to the position of hydropower would be desirable. Possible new regulations concerning other kinds of interests in water use should not interrupt the process of the stepwise achievement of objectives. The aim should be a harmonization between different interests of all water users and the NGP objectives to reach. In Austria there are actually two different planning procedures for the hydropower granting process. As mentioned above there is no difference between hydropower plants > 10 MW and < 10 MW but according to the EIA-G 2000 the planning process for hydropower plants > 15 MW or hydropower chains the granting process is more substantial.
Permission under the Austrian Water Act
The granting of a permit under the Water Act is a constitutive administrative act requiring the filing of an application (Knoblauch, 2006).
According to Article 9 paragraph 1 WRG (2006), every utilization of public waters as well as the construction or modification of developments allowing the utilization of waters beyond public use requires permission by the Water Authorities. In such a case the competent authority is to state upon application whether a certain utilization of a public water body goes beyond public use.
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According to Article 9 paragraph 2 WRG (2006), permission by the Water Authority is required for the utilization of private surface waters, as well as for the construction or modification of plants if they affect foreign rights (such as fishing), or if they influence the head, the flow, or the characteristics of the water body, or its water level, or if they entail hazards for riparian zones, or inundation or paludification of foreign grounds.
Article 9 WRG (2006) deals with the utilization of surface waters or water bodies, which is subject to strict water policy requirements, such as obligatory permit, proof of need, state of the art, safeguarding of public interests and foreign rights, etc. For this purpose, the term water utilization covers the utilization or exploitation of a body of water and/or of its characteristics and powers, although the general concept of obligatory permit does not provide for concrete adverse effects. Water utilization includes e.g. the withdrawal from or diversion of a body of water for the purposes of water supply, fish farming, or other uses. It also covers the utilization of the motive powers of water or of its chemical and physical characteristics, as well as the withdrawal of sand, rock, or gravel and similar material (Oberleitner, 2004).
Any modification of a water utilization plant, for the construction of which a permit under the Water Act is required, will always require permission under the Water Act, regardless of the extent of modification under consideration. Material modification means a modification which is likely to influence the protection goals stipulated by the Water Act. Modifications subject to permission are e.g. those entailing modification of the permitted water volume, a material rise of the effective head, or the reconstruction of a derelict water utilization plant (Oberleitner, 2004). The maintenance of water utilization plants within the meaning of Article 50 WRG (2006) is not included in the term modification of plants, and is thus not subject to permission.
Granting of permit under the Austrian Water Act
The granting of such a permit being an administrative act requiring the filing of an application, it must not exceed the scope of the application filed.
According to Article 17 in case of different applications for the granting of permit under the Water Act the application has to be chosen which serves the public interest most.
According to Article 103 WRG (2006), any application for the granting of permit under the Water Act must be accompanied by the following documents, unless the nature of the project makes certain documents unnecessary: . Information on the nature, purpose, extent, and duration of the project and the water body concerned; . Identification (land register entry) of the real estate property affected by the plant, identification of the owner as well as notification of the owners of water, fishing, and grazing & woodcutting rights; . Description of the expected beneficial effects, or of any adverse effects to be catered for in the event of an omission; . Information on the object and extent of the projected use of foreign rights and the targeted rights of coercion (Art. 60 WRG, 2006), and identification of the parties concerned; . The necessary expert designs, drawings, and annotations, and identification of the author; . For water utilization plants, information on the water volume utilized per second, day, and year; on the expected effects on the body of water; and on the intended water protection measures;
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. For hydroelectric power stations, information on power-unit capacity, seasonal storage, and the projected residual flow; . For dams, proof of stability and the safe evacuation of flood water; . For waterworks, expert opinions attesting the suitability of the water for the intended purpose, if necessary on required water treatment measures, and if necessary on protection measures (Art. 34 WRG, 2006), as well as information on the kind of waste water removal intended; . Information on authorities in charge of the project; . If applicable, intended monitoring and operation schemes; . Description of any possible transboundary effects, if the project refers to a water body which is subject to the administration of several provinces (cf. Knoblauch, 2006). The documentation to be presented by the applicant is to enable the competent authority to effect in particular the verifications under Art. 104 ff as soon and as simply as possible. It must enable the authority’s expert to render his opinion and the other parties to pursue their rights.
Applications for permit under the Water Act must thus contain in particular a clear description of the targeted water (utilization) right, full identification of all third parties possibly concerned, including their position regarding the project, as well as a comprehensive description of the environment affected by the project and the relevant effects (Oberleitner, 2004).
Upon filing of the application, the authority may effect a so-called “preliminary assessment” according to Art. 104 WRG (2005), examining in particular . if and to what extent the project affects public interests (Art. 105 WRG, 2006); . if the installations comply with the state of the art; . the measures intended or to be taken to ensure protection of the water body, of the soil, and of flora and fauna; . whether a possible conflict with public interests could be remedied by imposing special duties or modifications on the project; . if and to what extend the planed project is usabel for the intended prupose and which protection measures are required; . if the project is conflicting the National Water Management Plan (according to WFD), protected areas or other water management plans of the Water Authority; . if the project conflicts cross-national agreements. If it turns out that the planned project is inadmissible for reasons of public interest, the application is to be rejected immediately. The purpose of this preliminary assessment is to eliminate projects that would massively contradict public interests and thus to save unnecessary expenditure.
In a number of cases projects have been rejected on the basis of heavy violation of public interests, grounds which are clearly stated in Article 105 WRG (2006).
An application for a project permit may in particular be deemed to be admissible in the public interest, or permit can be granted only upon imposition of the adequate duties and auxiliary provisions, if (WRG, 2006) . one would have to fear a threat to public safety (source of floods, stability of embankment zone, etc.) or health risks (public use, such as bathing in polluted waters, or around waterworks
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ensuring drinking water supply); . one would have to fear considerably impaired discharge of floods (sedimentation in shallow waterways); . this would adversely affect the course, the level, the head or the banks of natural water bodies; . this would adversely affect water characteristics (e.g. by fine sediments); . this would entail a material impediment for public use (e.g. cattle trough), or threaten the necessary water supply, the provincial culture, or materially impair or threaten a monument of historic, artistic, or cultural value, or a natural monument (waterfalls, ravine waterway, riverside meadows or forests), the aesthetic effect of a townscape, or natural beauty, the flora and fauna, and/ or if . a material impairment for the ecologic status of the water bodies is to be expected. As the list of aspects of public interest quoted under Article 105 WRG (2005) pretends to be neither final nor exhaustive, new social developments may be taken into account. In addition, the aspects of public interest cited in this Article are by no means congruent. Thus the near-complete utilization of hydropower may contradict claims to the protection of water ecology or to the preservation of natural beauty. Thus authorities must not only watch for possible violations of the public interest, but are also to weigh different and sometimes conflicting aspects of the public interest before making and motivating their decisions (Oberleitner, 2004).
If a planned project is not rejected during the above described preliminary assessment, the procedure may be continued by arranging a hearing, in accordance with Article 107 WRG (2005). Both . the applicant, and . the owner of the property intended for use by the projected plant, or by way of coercion rights (Art. 60 WRG, 2005), must be summoned to personally attend the hearing. This is also valid for the owners of water and fishing rights recorded in the Water Register, whose rights are to be impinged upon by the project. The purpose of such a hearing is to clarify the objective facts, and to compile and discuss the interests of different parties and the public interests concerned, in order to create a comprehensive and workable basis for a decision.
Upon termination of all necessary investigation and hearings, the Water Authority is to decide in writing under Article 111 WRG (2005) on the extent and nature of the project and on the duties to be imposed on the project, unless the application has been rejected as inadmissible.
This permit notice comprises the following: . The granted extent of water utilization is to be defined by describing the devices used for the discharge of the water, as well as all other decisive parts of the plant (hydraulic motor equipment, utilization times). . The measure of the water quantity to be used is also to be limited in numbers by determining the ”admissible maximum” amount. . For hydropower plants: gross head, effective head, the generating capacity to be installed, as well as the standard working capacity per annum, if possible. Agreements made, such as agreements about pleas under Civil Law, must be authenticated upon request, by way of official notice. In addition, the Federal Ministry of Agriculture and Forestry,
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Environment and Water (BMLFUW) issues decrees detailing both content and form of permit notices.
The issuance of a permit equals the granting of a water utilization right for a certain period (minimum 10 years, usually in case of HPPs 90 years), pursuant to Article 21 WRG (2006). This right is granted for a certain location, extent, and nature of water utilization, provided that foreign rights and public interests are neither violated nor impaired.
To monitor the implementation of permission-based water projects, the Authority may nominate appropriate monitoring organs (site supervision under the Water Act) by means of official notice, who are to control the expert execution of construction work in accordance with regulations, as well as the compliance with the relevant conditions of the permit notice stipulated in Article 120 WRG.
Upon termination of the permission-based water project, the authority having granted the permit is to carry out a review as intended by Article 121 WRG (2006).
At the end of the granting period one can apply for extension of permit (Article 21 WRG). This extension of permit requiers a new permission process. If the applicant will not apply for extension the water body has to be restored in initial condition (Article 29 WRG).
The granting of permit can be deleted following cases (Article 27 WRG): . the applicant informs the Water Authority that he reclines the permission . the granting period ends or the applicant dies (in case of personal rights) . withdrawal according to Article 3 WRG or disvestment according to Article 4 WRG . expropriation according to Article 64 paragraph 4 . omittance of construction or finalization of permitted parts in time . destruction or omission of the necessary elements for the permitted water use, if the interruption of water use exceeds a duration of more than 3 years . destruction or unauthorized modification of the purpose of the facility if the granting of permit is appropriated for special use according to Article 21 paragraph 4.
General Aspects of the Environmental impact assessment in Austria
The Law on Environmental Impact Assessment (UVPG-2000) in force since 11 August 2000 brought material modification to the hitherto valid UVPG-1993. It transposes the EIA Directive of the European Communities into national law and additionally integrates environmental impact assessment into a condensed permission procedure. The purpose of this Federal Law on Environmental Impact Assessment is to extensively describe and assess possible effects of human activity on the environment before a project is implemented. In accordance with the precaution principle, potentially negative effects on the environment are to be prevented or minimised. This is to be done by engaging all involved parties at the earliest possible stage. Protectable goods include humans, animals, plants and their habitats, the soil, water, air and climate, the landscape, natural and cultural goods, as well as their interrelations (BMLFUW, 2010b).
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The UVPG-2000 is applied in fields of:
. waste management . energy economy/industry . infrastructure . mining . water management . agriculture and forestry as well as . industry.
Only new projects of a certain size are principally subject to UVPG-2000, without prior single case assessment as part of an Environmental Impact Assessment procedure. These include projects for which considerable environmental effects are to be expected. For modification projects, projects in protected areas, and projects with cumulative impacts on other projects, the authority is to state by single case assessment whether considerable environmental effects are to be expected and whether an environmental impact assessment is to be carried out on such grounds (UVPG-2000).
The competent authority for implementing a UVP procedure is the Provincial Government which is to execute a condensed permission procedure.
Assessment of the potential effects a project may have on the environment is done by experts nominated by the EIA Authority and covering various fields. These experts then render an extensive Environmental Impact Statement within the framework of the EIA procedure. A central element in the UVPG-2000 is the public participation during the procedure.
The Environmental Impact Statement (EIS) has always played an essential part in the procedure under UVPG-2000. It is the technical basis for the Environmental Impact Expertise to be drafted.
The project applicant is to work out an EIS which comprises a description of the project plus any and all environment-related information. According to Article 6 paragraph 1 UVPG-2000, the Environmental Impact Statement must contain the following information: . Project description with details of location, nature, and extent including information about immisions and emmisions ; . Overview of the major alternative solutions the project applicant has also examined; . Description of the environment (actual state), which might be considerably impaired by the project, including in particular humans, the flora and fauna and their habitat, the soil, water, air, and climate, the landscape and historical goods, as well as the interrelations between such protectable goods; . Description of any possible considerable impacts the project may have on the environment, as well as information regarding forecasting and investigation measures; . Description of measures for the prevention, reduction, and compensation of adverse effects the project may have on the environment; . Clear and comprehensible summary of all information;
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. Brief summary of possible difficulties the project applicant may have encountered in compiling the information required. The purpose of such a summarised Environmental Impact Statement is to provide the interested public, such as adjoining owners, neighbours, and other interested parties, who are not experts in this field, with easy access to the material contents and results of the examinations carried out by the project applicant.
Figure 2 shows the steps to the Environmental Impact Statement in simplified form:
Steps of the Enviromental Impact Statement
Desicion on the appropriate variant
Determination of EIS concept
Informing the public
Elaboration of the project file including all accompanying measures
Documenation and discussion of technical details
Compilation of results in a summary report
Figure 2 – Steps to the Environmental Impact Statement (Knoblauch, 2006, modified)
Additional to UVP procedure the UVPG-2000 provides also a simplified procedure for smaller projects with environmental impact. The assignment of procedures to the single case is stipulated in the Annex to this Law.
The simplified procedure differs from the UVP procedure in the following aspects:
. The procedural time-limit is six (instead of nine) months; . Citizens’ initiatives have interested party status (instead of party status) including the right of access to files; . Instead of an Environmental Impact Statement, drafting of a summarised assessment of environmental effects and a follow-up examination.
Figure 3 compares the course of a UVP procedure with that of the simplified procedure. The white boxes show in which way the two procedures deviate from each other.
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Figure 3 – Flow-chart of procedure: UVP procedure as opposed to simplified procedure (Knoblauch, 2006, modified)
Environmental impact assessment for HPP in Austria
According to Z30 UVPG-2000 an environmental impact assessment in necessary in case of
. hydropower plants (dams, weirs reservoirs, etc.) with a bottle neck capacity of more than 15MW . or hydropower plants in a chain of hydropower plants. A chain of hydropower plants is defined as a chain of two or more impoundments used for hydropower production without free flow stretch with a minimum length of 2 km between the hydropower plants.
Excepted of this regulation are technical measures to increase the efficiency of the bottle neck capacity or other measures to increase the efficiency of existing HPPs, when neither the residual
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flow reach, the reservoir level nor the downstream area are influenced. Measures concerning the restoration of the river connectivity are also excepted.
The simplified procedure has to be applied in case of
. weirs or other facilities to retain or store more than 10 000 000 m3 water (additional or new built) . weirs or other facilities to retain or store more than 2 000 000 m3 water (additional or new built) in protected areas (e.g. Natura 2000 areas, National parks)
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Slovenia
3.6. Legal aspects in Slovenia
3.6.1. Basic procedure for HP implementation In the Republic of Slovenia water concession granting is regulated by the Water Act and it is under the competency of the Government, or more precisely, the administrative procedure is under competency of the Ministry of the Environment and Spatial Planning (MESP).
By law, the waters in Slovenia are defined as a public good, hence it follows that for water use which exceeds general use (drinking, bathing, diving, ice skating, fire protection etc.) the water right is needed, which can be obtained as a water permit or water concession depending on the extent and commercial value of water use. In accordance with the Water Act the water permit for water use is obtained in the process of administrative procedure which starts with an application for acquiring water use permit. For example, the water use permit can be obtained for: private supply of drinking water or supply of drinking water provided as a commercial public service; technological purposes; the activity of bathing areas and natural health spas pursuant to healthcare regulations; the extraction of heat; the irrigation of agricultural land or other areas; electricity network; propelling water mills, saws or similar installations; for cultivation of fresh water organisms if fresh water outtake or if fresh water pond area is less than 0.5 km2; a port, if the investor is a person under public law; provision of ski slopes with snow etc.
On the other hand, Water Concession has to be granted in the process of public tendering which usually starts with the private or public sector initiative. For example, water concession has to be acquired for: the production of beverages; the needs of bathing areas and similar, if the use involves mineral, thermal or thermal mineral water; the production of electricity in a hydroelectric power plant; a port, if the investor is a person under public law; the removal of alluvium, except for the provision of public services pursuant to this Act; the cultivation of sea water organisms or fresh water organisms if fresh water pond area exceeds 0.5 km2.
It is important to stress that for obtaining the water right the relevant spatial planning act must regulate and allow the construction of all constructions and facilities which are needed for the planned water use. In the case of requiring a water permit, the investor must also have the right to build (land owning or agreement with the land owner for servitude right).
As written above, hydro electricity production (for all capacities) in Slovenia requires Water Concession which is granted in the process of public tendering. Figure 4 shows the basic process of water use for hydropower in Slovenia including all important phases from Initiative to Electricity
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production and Supervision.
The process usually starts with the initiative of interested parties and if the basic conditions which are checked by the Water Institute of Republic Slovenia (relevant Spatial Act, other environmental and water management objectives) can be considered, the MESP starts at this point the administrative process of the preparation of the decree proposal, which is sent to the Government for the adoption of the Decree..
Initiative for concession granting Water Institute of RS - Overview of relevant Spatial Acts - Consideration of other environmental objectives (fresh water fishery, nature preservation …), Government of RS adopts a - Consideration of existing water rights Decree for concession granting - Water management objectives (erosion, flood management), - Terrain research…
Is YES Concession granting eligible? Process of concession granting NO
Concession granting does not proceed
Design and construction
Operation and electricity production Supervision
Figure 4 – Basic process of hydropower water use in Slovenia
In the following paragraphs the process shown in the previous Figure is described in more detail, especially in regard to regulations and competencies. Also, the Paragraph 2.2 gives a more detailed description of the most relevant regulations.
3.6.1.1. Conditions and process for water concession granting for hydropower water use Legislation: Water Act30 with the following sub-legislation on the subject: Decree on criteria for determination and on the mode of monitoring and reporting of ecologically acceptable flow31,
30 Published in OG of RS, no. 67/02, 57/08. 31 Published in OG of RS , no. 97/09; Decree is an act which is adopted by the Government.
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Decree on provisional river basin management plan32, Decrees on the concession for the exploitation of certain river reach33.
Competent authority: Ministry for Environment and Spatial Planning (MESP).
Conditions to start the process of concession granting: The result of River Basin Management Plan (RBMP)34 must base upon the quantity and quality of water and sediments because the hydropower use of water in the concerned water body and adjacent area should be allowed only where also the principle of sustainable water use is already applied or considered, Since the construction of HP (also SHP) requires a building permit, the condition to start the process of concession granting is also adopted by Spatial Planning Document (paragraph 2.1.2) which defines and regulates hydropower land use (terms and conditions for design and construction of structures and facilities of HHP) in the respective area or river reach.
In this phase (or in more detail lately in the phase of concession granting) main limitations and conditions are defined, especially Ecologically Acceptable Flow (EAF or MIF), which is determined according to the Decree. The value of MIF can be increased if objectives which arise from the Freshwater Fishery Act35 or Nature Conservation Act36 are not reached by MIF determination according to the Decree.
Concession granting process: The process usually starts with the initiative of interested parties (investors, local communities) to the MESP, Control of the above-mentioned conditions37, Administrative procedure of the preparation of the proposal of the Decree by the MESP (usually for several locations at once), Adoption of the Decree on concession granting of certain river reach 38 by the Government Procurement for concession granting (the MESP or Environmental Agency of RS – EARS as body under the MESP) (next Figure), Signature of Concession contract39 with awarded bidder (EARS).
32 Published in OG of RS , no. 4/09. 33 Decrees are published in Official Gazettes of Republic of Slovenia. For the term Ecologically Acceptable flow in other countries of EU also terms as Minimum Instream Flow or Environmental Flow are in use. 34 Preparation of the RBMP is the implementation process of the WFD, where competent authority is the MESP. Slovenia has decided to adopt two RBMPs (one for the catchment of Danube basin, the other for river catchments of the Adriatic Sea). The elaboration of the RBMPs is in the phase of proposal, which is currently announced on the web pages of the Ministry of the Environment and Spatial Planning for public participation. The RBMPs will be adopted by the Government. 35 Published in OG of RS no. 61/2006 36 Published in OG of RS, no. 96/04 37 Although the conditions from RBMP and Spatial planning document allow hydropower use, the government still has a right not to start with the process of concession granting. The reasons for that are mainly national strategic issues. 38 Decree defines the influential area, ecologically acceptable flow, different spatial, ecological and technical terms, competencies in the process of public procurement, criteria for the evaluation of bids (offered concession fee over defined threshold, land owning, quality of basic design, financial ability of the bidder etc.), duration of concession, minimum concession fee, etc.. 39 Contract defines the river reach of concession, obligations of assuring ecologically acceptable flow, concession payment, duration of concession, dead line to start the production of electricity and other rights and obligations already defined in the Decree. Contract is usually signed for a period of 30 years.
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Adoption of a Decree for concession granting
Formation of Expert Commission at the Agency for the Environment
Elaboration of Terms of reference and announcement of tender in the Official Gazette
Evaluation of submitted bids
Adoption of Decision on selected Concessionaire
Preparation of Concession Contract at the Agency for the Environment
Signature of Concession Contract
Figure 5 – Procurement process for concession granting
3.6.1.2. Spatial Planning
Legislation: Spatial Planning Act40
Competent authorities: State (Ministry for Environment and Spatial Planning) -> National spatial planning document, Municipality -> Municipal spatial planning document or in the case of involvement of several municipalities -> Inter-municipal spatial document.
Main Directives and Conditions which have to be considered for hydropower land use in the process of spatial planning: Harmonization with directives and conditions of decision making stakeholders: Environment (nature preservation, water management, environment protection), Agriculture and Forestry (irrigation, ...), Riparian (Land owners), Existing water right holders, Other competent authorities (transport, tourism, ...), Elaboration of Comprehensive Environment Impact Assessment (CEIA) if reservoir of HP exceeds 10000 m3 or installed power is more than 1 MW (regulated by The Environment Protection Act41 ) or planning area is situated in nature conservation protected area (regulated by Nature Conservation Act), Acquirement of Energy Permit if installed power of HP is more than 1 MW and it is connected to the energetic network (regulated by Energy Act42).
40 Published in OG of RS, no. 33/07, 108/09. 41 Published in OG of RS, no. 41/04, 39/06, 20/06, 70/08 and 108/09. 42 Published in OG of RS, no. 79/1999 (EZ), 26/2005 in 27/2007 (EZ-UPB2).
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Strategic Support Acts
To harmonize the decisions stakeholders in the process of spatial planning, the following strategic documents are planned to be elaborated and adopted by the Government: Mentioned RBMP, currently in the phase of public consultation, Resolution on the National Energy Programme43 -> National Action Plan for use of RES44
3.6.1.3. Design and construction Legislation: Construction Act45 with most relevant sub-legislation on the subject46: Regulation on classification of construction with regard to their complexity47, Rules on design documentation48, Rules on construction sites49. The Environment Protection Act in the field of Environment Impact Assessment (EIA), Decree on the categories of activities for which an environmental impact assessment is mandatory50.
Hydropower plant is defined as a complex or in the case of the smallest HPP a less complex construction for which a building permit is required. The building permit is decreed by regional Administrative units which are under the Ministry of Public administration.
Basic requirements for building permit acquisition: project and technical documentation has to be elaborated according to the above mentioned Rules, obligatory Revision (done by licensed Engineers) of relevant technical and project documentation if construction is defined as complex construction. Basic condition for definition of complex object: if EIA is required (reservoir of HP exceeds 10000 m3 or installed power is more than 1 MW), for power lines more than 110 kV of voltage, for dams or weirs more than 10 m of height or with crest longer than 250 m in the case of earth dam or 50 m in the case of concrete dam or 300 m in the case of weir, for constructions and objects with deep foundations, All Consents which are defined in terms of elaboration of documentation for acquisition the building permit are basically already defined in relevant spatial planning document. Contents are decreed by competent sector authorities (for example Water content is decreed by EARS).
43 Adoption by Parliament is planned at the end of 2010. Implementation of the RES Directive is under competency of Ministry of the Economy. 44 Adoption by the Government is planned in 2011 45 Published in OG of RS, no. 27/2007, 70/2008. In June 2010 next amendment is predicted. 46 Design and construction legislation is a large area (competencies and requirements for elaboration, revision, construction, supervision; types of technical and project documentation; requirements for using of objects etc.) and it is not separately defined for hydropower. 47 Published in OG of RS, no. 37/08, 99/08 48 Published in OG of RS, no. 55/08 49 Published in OG of RS, no. 55/08, 54/09 50 Published in OG of RS, no. 78/06, 72/07, 32/09
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Construction:
Construction has to take into account: The above-mentioned Rules on construction sites which define marking and management of construction site, content and mode of work progress reporting and construction control. It is also more precisely defined in the Project for Building Permit requirement, Legislation in the field of safety, Assurance of the supervision.
Start of operation:
After the construction, technical inspection is performed, which is required in order to obtain the Permit of use as a written order decreed by regional administrative unit. The following documentation regulated by the above-mentioned construction legislation is required: The project of works executed, The land surveying plan of the new situation, of the land after the completion of construction, Evidence of the reliability of the structure, Guidelines for the maintenance and operation of the structure.
The Building Permit (terms of the consents) can also require the Operational monitoring51 for certain monitoring parameters for all or some time of the operation of Plants. In that case, before the Permit of use is decreed, also Test operation has to be carried out.
3.6.1.4. Operation and electricity production Legislation: Energy Act52 with the following sub-legislation on the subject: Decree on the requirements to be met for obtaining the status of a qualified electricity producer53, Regulation on supports for the electricity generated from renewable energy sources54 Decision laying down fee to assure support to production of electricity from cogeneration with high efficiency and from renewable sources55 Methodology for Determining Reference Costs of Electricity Generated from Renewable Resources56
Competent authority: Ministry of the Economy
51 For structures and facilities, where different environmental parameters have to be monitored (emission of waste water, air pollutants etc.), Operational monitoring has to be carried out. Requirements for operational monitoring are regulated by different sub-legislation mainly in the field of environment protection. For example “Decree on criteria for determination and on the mode of monitoring and reporting of ecologically acceptable flow” requires operational monitoring of ecologically acceptable flow for certain water uses, one of them is also hydropower water use. 52 Published in OG of RS, no. 27/2007, 70/2008. In June 2010 next amendment is predicted. 53 Published in OG of RS, no. 71/07 54 Published in OG of RS, no. 37/09, 53/09, 68/09, 76/09 55 Published in OG of RS, no.113/09 56 Adopted by the Ministry of the Economy in 2009
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3.6.1.5. Supervision
Legislation: Water Act with next sub-legislation on the subject: Decree on the water fee Decrees on the concession for the exploitation of certain river reach
Competent authorities: Ministry for Environment and Spatial Planning, Environmental Agency of RS and Inspectorate of the RS for Environment and Spatial Planning
Although the Guidelines for the maintenance and operation of the structure have to be elaborated for complex structures and facilities (as mentioned in the case of HPP that applies to structures with reservoirs exceeding 10000 m3 or installed power more than 1MW) the water right owner must elaborate Rules for the operation and maintenance for water structures or facilities (defined by Water Act)57
The paying of Concession Fee and Water Fee is financed by the Water Fund (by Water Act) which is a financial fund for water-management-related purposes. Concession Fee is shared (usually 50:50 – defined in the Decree on concession granting) between the Water Fund and the budget of the related municipality.
The Concession can be withdrawn if terms in the Concession Contract are not met (if use permit is not obtained in defined time, requirements about ecologically acceptable flow are not fulfilled, no electricity production for longer period etc.).
It has to be stressed that with new RES support scheme (more precise with the Regulation on supports for the electricity generated from renewable energy sources, mentioned under paragraph 2.1.3) subsidies for hydropower plants which do not fulfil obligations on Ecologically Acceptable Flow will not be granted or paid to hydropower electricity producers.
In continuation relevant legislation and regulations are presented in more detail.
3.6.2. Detailed introduction to the regulations
3.6.2.1. Waters Act58 (WA) In the Republic of Slovenia, the use of water that exceeds general use, the use of debris or groundwater require the acquisition of water rights on the basis of a water permit or water concession in accordance with the Waters Act (Official Gazette of the Republic of Slovenia, No. 67/02, 110/02–ZGO-1, 2/04–ZZdrI-A, 41/04–ZVO-1 and 57/08; in continuation WA).
The article 136 of the WA states that the use of water for the generation of electricity in a hydroelectric power plant requires concession.
The article 136 of the WA states that the use of water for the generation of electricity in a hydroelectric power plant requires concession.
The concession can be granted to physical or legal entities meeting all the required terms. The concession is granted for a limited time and not exceeding 50 years and can be extended upon the owner’s application provided all the terms for its acquisition are fulfilled at the time of its
57 The content is defined by internal rules, prepared at the EARS 58 Waters Act (OG of RS, no. 67/02, 110/02 - ZGO-1, 2/04, 10/2004)
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termination.
The terms of concession granting are defined by the concession act that can be issued in accordance with the article 137 of the WA on the basis of the law on concession in the area of natural goods when the plan of water management ensures that the quality and quantity of the water or debris allow the indented use which in turn is in accordance with the principle of sustainable water use. The concession act is issued in accordance with the terms and conditions defined by governmental regulations and water management plans. When the use of water requires the acquisition of a permit for land use in accordance with the regulations on spatial planning and construction of facilities, the concession act is based also on the spatial acts of the state or local community.
Legal or physical entities can submit to the government a proposal for issuing a concession act for use based on the first paragraph of the article 136 of the WA. The proposal for issuing a concession act must include all the elements necessary for defining the contents of the concession act, primarily the area of concession, the type, the scope and the length of use. Within three months from the receipt of the proposal, the government informs the proposing party whether the granting procedures will commence.
The concession is granted by the government on behalf of the Republic of Slovenia in accordance with the provisions of the WA. The concession is granted with an act on selection on the basis of a public tender. To extend the length or to increase the scope of concession, the concession is granted to the existing holder without public tender when the conditions remain unchanged and when the concession holder meets all the required conditions.
Decree on criteria for determination and on the mode of monitoring and reporting of ecologically acceptable flow 59 The third paragraph of the Article 71 of the WA states that the government of the Republic of Slovenia defines the criteria for determination of the ecologically acceptable floe (Qes) and the manner of its monitoring and reporting. The Article 90 of the Act amending Waters Act (OG of RS, No 57/08) states that the granted water rights need to be adjusted to the amended Article 71 within five years from adoption of this decree.
The decree defines the starting points and criteria for defining the Qes. The starting points for defining Qes are the data on the medium small flows (sQnp) and medium flows (sQs) in the area of special use. sQs and sQnp are defined by the Environmental Agency of the Republic of Slovenia on the basis of data from the state hydrological monitoring or when those are not available on the basis of measurements. The measurements are provided by the initiator or the owner of the water right.
Qes is calculated with equations in regard to the correlation of the data on Qes identified in the previous years with the data on the medium small and medium flows in the area of special use. The equations vary in regard to the relation between sQnp and sQs, relation between both, the length and the quantity of intake and the returnability of the intake. Qes, defined by equation, is checked additionally in special cases and can be decreased or increased when required by specific conditions in the area of special use. Special cases are thus defined for special used of water for drinking water provision, for special water use on protected or conserved areas and for special use in the areas with emissions of substances permitted in accordance with environmental regulations.
59 Decree on criteria for determination and on the mode of monitoring and reporting of ecologically acceptable flow (OG of RS, no. 97/09)
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The granted water rights, which need to be adjusted within five years to the terms of the decree in accordance with the Act amending Waters Act, have specific criteria for Qes definition which take into account the actual conditions in individual water rights.
The decree defines the criteria for Qes monitoring and it prioritizes the obligatory design of intake structures in a manner that prevents water intake when the water flow in the area of special use is falls below Qes. When such design of intake facilities is not possible it is necessary to monitor the relevant parameters to ensure the control of Qes. The decree defines the parameters to be measured for such purpose.
The decree defines the manner of reporting data on Qes required by competent authority for water management or competent inspectorate as well as the control of the ensuring and monitoring of Qes.
60 Decree on provisional river basin management plan5
The decree is the basis for a provisional plan of water management defining the necessary foundation for implementing individual tasks of water management and preparing detailed plans of water management. The provisional plan is regarded as the environmental starting point in the area of water management in accordance with environmental regulations.
The goals of the provisional plan ensure the implementation of tasks for transferring to the new system of planning and implementing water management in the areas of the Danube and the Adriatic Sea.
Provisional plan goals: 1. Adjustment of database or appropriate connections between databases to prepare and implement water management, 2. Establishing a system of a combined approach to the control of point and diffuse sources of pollution, 3. Establishing the public relations system, 4. Definition of the environmental standards of chemical and ecological state of the water bodies in surface waters, 5. Definition of the environmental standards of quality for the chemical state of groundwater, 6. Definition of the parameters and criteria for the assessment of the quantity of the water bodies of groundwater, 7. Establishing Water Book and Water Cadastre, 8. Preparation of a program for a precise planning of flood evaluation and management, 9. Preparation of methodologies for the analyses of costs and benefits and assessment of cost efficiency of the programs of interventions, 10. Management of databases on chemical and ecological states of water bodies of surface water and chemical and quantity state of water bodies of groundwater on the basis of monitoring the state of surface and groundwater, 11. Establishing and managing the records of emission, discharge and leakage of priority substances and priority hazardous substances and other water pollutants,
60 Decree on provisional river basin management plan (Official Gazette RS, No. 4/09)
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12. Management of database of production monitoring in accordance with regulations governing the emission of substances in discharge of water, for inserting into inventories of emissions, releases and losses of priority substances and priority hazardous substances into water 13. Reviewing and updating the description of water bodies of surface and groundwater in the articles 2 and 3 of the decree, especially the definition of the severely transformed water bodies of surface water, 14. Reviewing and updating the economic assessment of the use of water or debris in the article 13 of the decree, 15. Reviewing and updating the demonstration of impact and influence of human activities on the state of the surface and groundwater in articles 4 and 7 of the decree, 16. Evaluation of probability of reaching the environmental goals by 2010 for water bodies of surface and groundwater in regard to the expected trends of the individual types of water use and water impacts and in regard to the expected efficiency of the interventions of operative programs in accordance with environmental regulations, 17. Updating the scheme of areas with special requirements in article 8 of the decree and 18. Updating the scheme of network and results of monitoring of surface and groundwater in articles 9 and 10 of the decree. The objectives must be reached at the latest by the adoption of the first plan on water management in the water area of the Danube (also River Basin Management Plan for Danube Basin) and the first plan on water management in the water area of the Adriatic Sea (also River Basin Management Plan for Adriatic Sea) in accordance with water regulations.
3.6.2.2. Environment protection act61 (EPA-1) As defined by the article 164 of the Environment protection act the state or the municipality can sell the concession for managing, using or exploiting natural goods on its property or under its legal authority of managing to a legal or physical entity (in continuation: concession holder) if the latter is qualified for the implementation. When the concession for natural goods is granted by the state, a part of the payment for the concession is allocated to the municipality where the concession is implemented or is influenced by it, the ratio of which is defined in cooperation with the municipality in the concession act on the basis of the identified level of development of the infrastructure and impact on the environment. The criteria for defining the level of the development of infrastructure and environmental impact are defined by the government. The concession for natural goods can be granted if all environmental terms for dealt activities in the environment defined by this act or other acts on the protection and use of natural goods are met. The concession can be granted only on the basis of a public tender unless defined differently by law. In the acquisition of concession based on a public tender the right to priority can be exercised. The priority to be granted the concession is given to owners of land where the natural good is located if the owner meets all the terms in the first paragraph of the article defining the qualifications for implementing the concession.
In accordance with article 165 of the Environment protection act the basis for granting the concession is a concession act, which is governmental or municipal regulation. The concession act primarily includes: 1. Definition of the natural good for which the concession is granted,
61 Environment protection act (OG of RS, no. 41/04, 17/06)
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2. The object of concession and the definition of the range and possible exclusiveness of the concession, 3. Definition of environmental terms, terms of protection regime and management regime, use or exploitation of the natural good, 4. The activity that can be implemented by the concession holder in regard to the rights related to the concession, 5. Conditions to be met by the concession holder, 6. Possible public authority of the concession holder, 7. Starting and terminating date of the concession, 8. Area of the concession, 9. Payment for the concession and the ratios of the state and the municipality, 10. Authorization for supervision of the concession implementation, 11. Reasons for and the manner of terminating the concession, 12. Obligations of the concession holder in regard to repairing, restoring previous or establishing new environmental conditions, and 13. Authorization for and conditions of drawing and validating the concession contract.
Acquisition and selection of concession holders, public tenders, all concession contract issues, protection of concession holders and dispute resolution, termination of concession, transfer of concession, obligatory concession, force majeure and responsibility of concession holder for the acts of the employees are reasonably governed by the act defining concession for public utilities62 unless stated otherwise by the law.
3.6.2.3. Nature conservation act63 (NCA) Anyone intervening with nature or habitats of plant or animal populations must use manners, methods and technical aids contributing to maintaining favourable condition of the species. The minister in charge of nature protection in agreement with the minister in charge of plant or animal species or habitats of their populations can define the least disturbing manner and conditions of intervening with nature as well as set a time limit for interventions into the habitats of animal populations at the time of their critical life periods.
Natural values include all natural heritage in the area of the Republic of Slovenia. Natural values include beside rare, valuable or prominent natural phenomena also other valuable phenomena, contents or parts of nature, a natural area or a part of a natural area, an ecosystem, landscape or designed nature. Natural values are mostly geological phenomena, mineral, fossils and their sites, surface and underground karst phenomena, caves, gorges and ravines and other geomorphologic phenomena, glaciers and forms of glacier activity, water sources, waterfalls, rapids, lakes, marshes, streams and rivers with banks, sea coast, animal and plant species, their exceptional specimens and their habitats, ecosystems, landscape and designed nature.
A special area of conservation (area Natura 2000) is ecologically important area which in the EU aims at preserving or reaching a favourable condition of birds and other animal and plant species,
62 Public utilities act (OG of RS, 32/93, 30/98) 63 Nature conservation act (OG of RS 56/99, 31/00 - correction)
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their habitats and types of habitats. Special conservation areas are a part of the European ecological network Natura 2000.
The article 44 of NCA defines that the general use of natural resources or natural public good which is at the same time a natural value can only be performed in a manner which does not endanger the existence of the natural value and does not prevent its protection. Conservational and developmental guidelines as well as conservational regimes of natural values are an integral part of permits or concessions for special use. The permit for special use or a concession act which is not in accordance with the preceding paragraph is invalid.
3.6.2.4. Freshwater fishery act64 (FFA) The FFA among other governs the area of natural resources, namely waters. Its article 19 defines that each intervention into a fishery area needs to be planned and implemented in a manner that to the greatest extent possible ensures protection of fish, the variety of species, age structure and number. The construction of facilities on water areas in accordance with regulations on building can be implemented upon preliminary acquisition of an agreement issued by the Fisheries Research Institute of Slovenia (the Institute). For the purpose of migration of fish through facilities build on waters, the investor must provide a fish passage. The functionality of the passage is ensured by the owner or the tenant of the facility. The Institute in cooperation with the implementer of fishery management issues an opinion on the influence of the intervention on the condition of fish within the procedure of water right granting in accordance with the regulations on waters.
3.6.2.5. Spatial planning act65 Spatial management is governed by spatial plans. The spatial plans define guidelines on land use, the types of possible land use and the conditions and criteria for their implementation. There are state, municipal and inter-municipal spatial plans.
The spatial plans governed by the Spatial planning act, except for state strategic spatial plan, are adopted upon comprehensive evaluation of the influence on the environment in accordance with the definitions of this act and the environment protection act and with no requirement of the revision of the environmental report.
Municipal spatial plan, with consideration of the state spatial acts guideline, the developmental needs of the municipality and protection requirements, defines the goals and the starting points of the development of the municipality, defines the local spatial plans and the terms of integrating facilities into space. Municipal spatial plan includes strategic and implementing parts.
The implementing part of the municipal spatial plan of individual units of spatial planning defines: 1. Areas of intended use of space; 2. Conditions of implementation; 3. Areas for which a detailed municipal spatial plan is prepared.
The municipal spatial plan serves as the basis for preparing the project for acquisition of the building permit in accordance with building regulations (article 39).
64 Freshwater fishery act (OG of RS, št. 61/06) 65 Spatial planning act (OG of RS, 33/2007, 70/2008 and 108/2009)
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3.6.2.6. Construction act66 (ZGO-1) The act defines the conditions for building any type of construction, defines the essential requirements and their fulfilment in regard to the characteristics of the construction. Building permit is a decision with which the competent authority allows building and defines actual conditions to be considered during building.
Once a construction is built, a permit of use needs to be obtained, with which the same authority that issued the building permit, now allows the start of use of the construction on the basis of technical inspection.
Constructions are classified according to the complexity of construction and maintenance into complex, less complex, non-complex and simple. A governmental regulation67 specifically defines the types of construction with regard to their complexity. The largest size of simple construction is defined as well as the method of its building and use and other conditions that need to be met for a construction to be classified as simple, as well as regular maintenance and investment maintenance activities, unless stated otherwise by the law.
Rules on design documentation68
The rules define detailed contents of design documentation for complex and less complex constructions, the building method and the types of plans that are part of the documentation and are used for individual types of buildings and facilities in regard to their use, form and contents of the revision report as well as the contents of the report on the indented building activity.
3.6.2.7. Act on physical assets of the state, regions and municipalities69 Since a large number of watercourses is situated in the water region owned by the Republic of Slovenia, construction of facilities requires the acquisition of property right, such as servitude right or right to build and consideration of Law of Property Code, the Act of physical assets of the state, regions and municipalities and the decree70 passed on its basis.
3.6.2.8. Energy act The law defines the principles of energy policies, rules for the activities on the energy market, the manners and forms of implementing economic public services in the field of energy, the principles of reliable provision and efficient use of energy and conditions for operation of facilities, conditions for performing services in the field of energy, granting of licenses and energy permits and the authorities in charge of administrative tasks governed by this law.
Regulation on issuing of the Declarations for the production units and of the Guaranties of Origin 71
The regulation defines the conditions and procedure for obtaining declaration for production units that generate electricity from renewable sources and in co-production with high efficiency, the
66 Construction Act (OG of RS, no. 110/2002, 97/2003) 67 Regulation on classification of construction with regard to their complexity (OG of RS, no. 37/08 in 99/08) 68 Rules on design documentation (OG of RS, no. 55/08) 69 Act on physical assets of the state, regions and municipalities (OG of RS, no. 14/07) 70 Decree on physical assets of the state, regions and municipalities (OG of RS, no. 84/07) 71 Regulation on issuing of the Declarations for the production units and of the Guaranties of Origin (OG of RS, no. 8/09)
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contents and the manner of managing the register of declarations for production units, monitoring of production units with declaration, issuing of guaranties of origin of electricity generated from renewable sources or in co-production with high efficiency , management of register of guaranties of origin, transaction of guaranties of origin, data transfer for the issuing of the guaranties of origin, in accordance with definition of the first, second and third parts of the Article 5 of the Directive 2001/77/ES of the European Parliament and Council from September 27, 2001 on promotion of production of electricity from renewable sources in domestic trade in electricity (OG of RS, No. 283 date 27/10/2001, page 50; and the first, second, third and fifth parts of the Article 5 of the Directive 2004/8/ES of the European Parliament and Council from 11th February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC (OG of RS, No. 52 dated 21/2/2004, page 33;). The declarations are issued for production units that use renewable sources as their intake energy and hydropower plants are thus included under such type of production units.
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Greece
3.7. Legal aspects in Greece The existing legal framework that governs the entire planning process for RES projects is:
. Fragmentized in different laws and ministerial decisions, decrees and regulations, most of the times even contradictory
. Incomplete, particularly with regard to the necessary environmental (and planning) standards, criteria, terms and conditions of installation works for RES However, the biggest problem with the existing legal framework is generally the negative attitude towards SHP as projects that are likely to cause serious environmental impacts, such as refineries, heavy industry, etc., and not as the most environmentally friendly forms of energy.
Identification of the exclusion zones On the one side SHP are situated in regions of water resources and on the other hand they are environmentally – friendly, the impact of the Environment minor. Nevertheless there are some restrictions considering the construction and the operation of the hydroelectric projects which should be taken into consideration when defining the place they will be installed:
. The SHP which function with constant flow are not constructed in big dams hence there is no flooding of land and changes in land use
. Intervention in SHP are small and there is no significant surplus of material
. The new roads required to be paved for the installation of pipelines, usually are only used during the construction project. Forest roads are narrow and hardly used after construction. For these reasons, interventions for the opening is usually minor
. The extent to which may clearing of vegetation may be required is also minor and where it exists, in area along the pipeline inlet and usually about 5-10 meters in width. The vegetation in these cases, however, is restored very quickly, within 2-3 years
SHP are classified as industrial plants according to JMD19500 (Official Gazette 1671/11.11.2004), they are characterized as not crowded activities, in terms of matching the generation of electricity with the rate of nuisance it can create, as referred to planning legislation. Noteworthy however is the fact that the abolition of the JMD1726/2003, JMD 104247/2006 and 104248/2006, the SHP with power capacity up to 10 MW are non- crowded a activities but if they drift along > 1,000 m they are classified as bad for the environment activities category A1 JMD 15393/2332/2002.
Based on the above the following exclusion zones are set within which the construction of SHP is prohibited either for institutional or operational reasons:
. declared monuments of world cultural heritage and other major monuments according to paragraph 5bb Article 50 of Law 3028/2002, as well as archaeological zones as set in
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accordance with Article 91 of Law 1892/1991, or under the provisions of Law 3028/2002
. areas protected according to Articles 19 Para 1 and 2 and 21 of Law 1650/1986
. Wetlands of International Importance (Wetlands RAMSAR)
. National Parks declared monuments of nature and aesthetic forest areas not included in the previous case
. habitat areas included as sites of Community importance in the NATURA 2000 network in accordance to Decision 2006/613/EC ( L 259, 21.9.2006, p.1)
. traditional villages and historic centers or parts of cities
. parts of quarry and mining areas and mining areas operating on the surface
. Other areas or areas currently under a special land use regulations under which the location may not allow the installation of SHP for a long-period.
The process of ownership, renting and granting of land
Figure 6 – Chart of the process of renting
Purchase and private installation or long-term rental When the site of the plant installation is private ownership the investor should ensure the purchase or the long-term rental of the land.
Fallow land in a shared public area The provisions of Articles 1, 4 and 5 of Law 221/74 are applied. This practically means a positive opinion from 8-10 authorities such as the Department of Civil settlement and land,
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Byzantine Antiquities, Prehistoric and Classical Antiquities Authorities, Department of Tourism of the relevant Region, Department of the Environment, Urban and Forestry Departments, Department of Health, Medical Board and the Army) and the Municipal Council of the municipality, consulting the Ministry of Rural Development, and finally the Minister’s decision. Estimated time 6-12 months at minimum.
Forest land According to Law 2941/2001 SHP are allowed to be installed in forests under special provisions and restrictions, article 2 « Simplification of the process of implementation of RES).
Land on the bank or near the banks of a river If the land is public ownership and not used as a beach, on the banks or near the banks, ownership of the Public Land Department it is granted with a decision taken by the Finance Minister, who grants the land or rents it according to the provisions of Law 2971/2001 (article 14).
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4. Identification of weak points Romania
4.1. Identification of weak points in Romania . So far, in Romania, the specialized authorities have focused on implementing the European Directives, on establishing the policy formulation and on promoting the RES, on the environmental assessment but, for various reasons SHPs are not implemented as estimated.
. Due to the global economic crisis, the pressures carried on the energy sector to ensure the trend of increasing electricity demand in previous years no longer exists. The authorities may focus on diversification measures to replace the production of energy from fossils resources (fuels) with energy produced from RES. This program helps the realization of the forward works included in the development of hydrotechnical works, necessary for hydropower, drinking water and flood defense.
. Another issue encountered in Romania is linked to the delayed start of construction of SHP. A law was issued to prevent this situation through which the beneficiaries of SHP investments is required to provide a financial guarantee for blocking the site which may be in the form of bank deposit, irrevocable letter of guarantee or other means provided by law and central public authority in the water sector.
. Romanian law provides a unique system of land and real estate advertising for the entire country by Law no. 7 / 1996, aiming to harmonize and unifying the different systems applied to the entry into force of the law. However, despite the law there can be noticed unconformities with regard to the application of the concession law.
Italy
4.2. Identification of weak points in Italy . No substantial differences exist between the concessions for micro/mini diversions and large diversions: this is the first non-technological barrier to the development of mini hydropower plants because the general procedure for granting water use concession is rather complex both as regards the documents to submit and the procedures to go through; the applicant is thus required to bear a considerable economic commitment which makes some types of plants (mainly micro hydropower plants up to 100 kW) economically unsustainable.
. The thresholds for the regional checking of EIA are in general too low. Based on the criteria established by the legislative decree n. 4/2008, the threshold for the checking procedure is equal to 200 l/s, if the plants is located into a protect natural area, the 200 l/s threshold is halved and power plant project goes directly to the EIA; the respective procedures require the submission of a considerable amount of documents aimed at assessing the impact of, often, small-sized plants, run-of river types, that immediately return water downstream of the water diversion barrier.
. The lack of a real definition of the compensation costs required by the Bodies and the
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Municipalities (payment of a fee related to the granting of water use concessions (extra- fees), and of a compensation for the environmental “damage”). Precisely, the Bodies and the Municipalities cause the increase of the costs of plant construction, as they require considerable and unexpected compensation costs, both in terms of amounts and application rules.
. Uncertainties on the data regarding water resources: one of the aspects that limits the development of mini hydropower is due to the uncertainties regarding water resources: Italy lacks a technical data bank capable of supplying data regarding the flow rates of exploited water resources, which are fundamental in order to take a technically and economically sustainable decision. If you want to refer to the data available at local territorial Bodies, you have to cope with the not homogeneous data archives and administrative management of such bodies, which, in many cases, have not yet achieved the power to fully carry out their peculiar functions as prescribed by law. The consequence is a not homogeneous and not in the least clear national framework, mainly to those private entities who intend to work on the territory.
. Uncertainties on the minimum flow rate to release in the river bed (MIF): the lack of reliable data on the real availability of surface and underground water directly causes difficulties in carrying out proper quantitative assessments on the required site (definition of the reserved flow) and the relevant subsequent monitoring of releases. In particular, having reliable flow data is deemed necessary in order to correctly determine the hydrologic component of the MIF, bearing in mind all the serious consequences for grantees in case of overestimate.
. Non-implementation of the obligation to install flow meters: under the Consolidation Act on water n. 152/06, the Ministry of the Environment should issue the guide lines and the regions should define the technical specifications for the installation and maintenance of (compulsory) devices to measure flow rates and derived public water volumes next to withdrawal spots and, where existing, next to the spots where water is returned, as well as the methods to pass on the results of the measurements carried out by the granting Authority.
. The Legislative Decree n. 387 of 2003, Article 12 has introduced a major simplification concerning the authorization procedures for plants using renewable sources. However, the same decree foresees the immediate adoption of Guidelines that precisely illustrate modalities and technical criteria to be applied to the procedures for construction and operation of RES plants, with particular reference to criteria for the identification of plant construction sites. The national Guidelines regarding the Single Authorization proceeding has been published only on 18th September 2010. As a consequence of the lack of a general, national, and unitary model, the Regions have produced, since the year 2003 until nowadays, an array of disciplines with differentiated provisions. This caused in some Provinces the duplication of the procedures: in some Province the applicant who wants to build a hydropower plant shall go through at least three different examinations: obtaining the water diversion concession, building and operating the hydropower plant and the authorization to build the long-distance power line; each of the over-mentioned examinations requires different costs, time and documents. The Bodies involved are required to express their opinion on the same project but in different examinations, thus duplicating the activities of the bodies required to express their opinion regarding other procedures. The publication of the national Guidelines regarding the Single Authorization proceeding, in accordance with the Legislative Decree n. 387 of 2003, could solve this problem. Actually, the regional legislation must
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be aligned with national Guidelines within 90 days from their publication on the Official Gazette.
The lack of energy planning at national level, which is gradually transferred to the regional and then to the provincial level, is considered by the provinces as an element of great uncertainty over the compliance with the preliminary inquiry process. This is due to the absence of a policy reference framework that should provide intervention priorities and defined programming elements for the identification of plant construction sites. The natural consequences of the lack of uniform planning in various territories are the distortions regarding electricity production. Despite the fact that electricity production is of public interest and encouraged by the State, the plant installation in some territories may be forbidden, but in other territories, under similar conditions, may be instead authorized.
Austria
4.3. Impact of the WFD on SHP in Austria The purpose of the WFD is to preserve and protect the status of aquatic ecosystems with a “good ecological status” and to increase the status of water bodies with “moderate status”. The classification of surface water bodies is based on biological, hydromorphological, chemical and physico-chemical quality elements. To reach the targets of the WFD in Austria, the minimum instream flow of some hydropower plants has to be increased and hydropeaking has to be reduced.
New small hydropower plants in Austria must comply with the strict requirements of the Austrian Water Rights Act and the EU Water Framework Directive (WFD) and existing plants are adapted to this legislation.
The main problem for SHP in Austria concerning the implementation of the WFD can be classified in two categories:
. increase of the minimum instream flow (MIF)
. continuity for the biological quality elements especially fishes.
The main problem for the SHP is the increase of the minimum instream flow and the construction of fish passes to ensure the continuity for the biological quality elements especially fishes. Additional to the investment costs, the increase of the minimum instream flow minimize the hydropower production. As a consequence of these measures the hydropower production will decrease. For example in Austria the loss of hydropower production will be about 15% for small hydropower and about 9% for hydropower bigger than 10 MW (Stigler et al, 2005).
The objectives mentioned above are causing a conflict between the targets of the WFD and the aims of the RES-e Directive. On the one hand river ecosystems shall be protected, which means a decrease of hydropower production and on the other hand the generation of electricity out of renewable sources, including hydropower as a very important source, shall be increased.
Additional to the investment costs, the increase of the minimum instream flow minimize the hydropower production. As a consequence of these measures the hydropower production
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will decrease.
All hydroelectric plants in Austria where there is no MIF or fish pass yet will be adapted in the next few years to the state of the art.
Impact of the WFD on hydropower permission in Austria The construction of new hydropower plants affects in most cases the prevention of deterioration of the WFD. The Austrian definition of a "very good ecological status" includes a low bandwidth. So if a water body has a very good status, the new construction of a hydropower plant is not or just difficultly to reconcile, as there would be a prohibited deterioration. The definition of "good condition" is more generous.
In addition to these aspects also other interests are to note, such as nature conservation, forest law or Energy laws.
Expected energy losses concerning MIF in Austria
As mentioned above there are more than 2600 SHPs producing approx. 4000 GWh/year in Austria. This is about 9% of the electricity production in Austria (Kleinwasserkraft Österreich – www.kleinwasserkraft.at; 2010). To reach the targets of the WFD, the adaption (increase) of the MIF at diversion plants is necessary. As a consequence of these measures the hydropower production will decrease. As shown in Table 10 – Expected energy losses concerning MIF at SHP in Austria (Source: Stigler et al., 2005) in Austria the loss of hydropower production will be about 10-30% for small hydro power (Stigler et al, 2005).
Table 10 – Expected energy losses concerning MIF at SHP in Austria (Source: Stigler et al., 2005) The actual national regulations (“Qualitätszielverordnung Ökologie”) according the River Basin Management Plans provide a minimum instream flow of 50% of the minimum annual mean discharge (MJNQT) of the river to reach the “good ecological status”. Due to the implementation of this regulation the hydropower production will drop approx. 15%.
The withdrawal of water can infect the “ecological status” if the discharge downstream is less than the minimum instream flow (Figure 7). Insufficient MIF injures river sections and
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affects the river connectivity (BMLFUW, 2005).
Figure 7 – Old HPP “Alm bei Vorchdorf/Lambach”, by now rehabilitated (BMLFUW, 2005)
Ecological accompanying measures – Fish passages The connectivity of river systems is one of the most important parts of the WFD. The most vulnerable element of the biological quality indicators relating the river connectivity is the fish fauna. To enable the fish migration at HPP the construction of fish passes is necessary.
Fish passages are hydraulic devices that allow the fish to bypass the power plant and to ensure the continuity of the river. Fish passes can be classified in the following categories (FAO & DVWK, 2002):
. technical fish passes (such as vertical slots)
. close-to nature types of fish passes (such as bottom ramps and slopes; bypass channels; fish ramps)
. mixed types
A lot of SHP in Austria has to build a new fish pass to facilitate the fish migration required by the actual national regulations. In some cases the construction of the fish pass at SHP is economically unviable without investment grants.
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Slovenia
4.4. Main problems in Slovenia According to current process of implementation of hydropower in Slovenia from economic point of view the following problems should be considered:
. There is no guarantee for the investors that after their involvement in the phase of pre- investment studies, participation in the environment impact assessment documentation elaboration in the process of spatial planning (time and financial resources) they will be granted with the concession for water use for hydropower production. Potential investors assures their advantage in the phase of public procurement for concession granting with land purchase or easement
. Cost-Benefit Analyses are in many cases superficially prepared which puts risk in further phases, especially in the phase of construction . There is lack of efficient enterprise model, which will support exploitation of longer sections (reaches) of river courses with determined ecologically acceptable potential or prepare SHP owners which are located one after another to start constructing one larger SHP Greece
4.5. Main problems in Greece
Problems when granting Land When renting public land as mentioned more than 8-10 authorities must express opinion before the Minister of Agricultural Development signs. More than a year is needed before everybody expresses opinion.
There are also huge problems when the land is on or near river banks. In this case the river should be first declared as sailable or not so that the Spatial Authority can rent the land. Because the legislation does not state clearly the term ‘sailable’ and there is no description or categorization of rivers in Greece as sailable or not this is a highly subjective process and the decision may differ from authority to authority. If the river is characterized as sailable the renting of the land follows the provisions of article 5 Law 2971/2001. In the opposite case-article 5 of Law 3010/2002 «The process of categorization of water resources and rivers», a very expensive and time-consuming process which in the end can lead to a dead-end because land can be rented only where rivers are considered sailable.
Problems during the process of issuing production, installation and water resources usage permits as well as operation permits The main problem is that a lot of authorities should express opinion which takes a lot of time. For example from the preparation of the folder to the acquirement of the production permit more than 1,5-2 years can pass. Worse is when it comes to installation permits which can take 3-4 (!!!). But main delays are when authorities have to express opinion and
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especially when it comes to Water usage.
Problems when issuing environmental permits Until today in order to issue a permit to implement a RES project there is an excessive plethora of Laws that concern the environment.
The target is to simplify the whole process and to define the standards for all kinds of RES technologies and to synchronize European and Greek legislation.
Especially for SHP according to recent legislation decisions the process has been complicated in a great degree (compared to the past) and as a result the whole process has become complicated and time-consuming.
In the same time the constant flow of new laws and restrictions which most of the time are contradictory and do not follow the general policy for the environment but the changing categorization of SHP (thus the criteria for issuing a permit changing too) has led to a unfair treatment when issuing permits for SHP compared to other RES permits and practices in the whole world.
Here follows a brief description of the legislation framework that concerns issuing permits for SHP with emphasis on the differentiating points according to recent legislation and regulations which are considered to have affected negatively the process of issuing a permit and the development generally of SHP.
Problems during the process of connection to the net In regions where the Net is old the applications are not studied and could remain pending for more than a year. In each case it is clear that there should be clear planning when developing the electricity system.
Other problems Although during the last years there is an attempt to achieve greater and faster development rates concerning RES exploitation (legislative framework for the liberalization of electricity and the promotion of RES, economic incentives for the development and the implementation of RES) Greece has taken no steps in order to achieve these targets.
But in the hazy and ever-changing institutional landscape, where licensing procedures are an infinite case, financial incentives do not always clear targeting, delaying completion of planning for RES which has almost degenerated into a text only to restrictions on the RES does not provide a guarantee for achieving the ambitious goals. Furthermore, the standards of the process remain to some extent: the fragmentation, complexity and the highly subjective nature of evaluating applications for authorization. The legislation often contains vague terms so that the current interpretation of the relevant bodies be open to debate, leading to protracted conflicts.
To the above problems should be added the problems of approval of projects related to the environmental usefulness of such investment (especially wind and small hydro). Additional
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problems are the lack of infrastructure (especially electricity networks, especially in areas with high potential for RES) and the rigid framework prohibiting the development of such infrastructure by private initiative and the lack of standards / specifications of the data / studies for authorization. The latter leads to an ever - increasing demands from the licensing authorities that do not always make sense or do not offer any meaningful evaluation of the impact of an investment.
Beyond these basic obstacles and problems of the licensing process for RES projects, there are issues that fall within the sphere of responsibility of the operator of the investment, whose ineffective response exacerbates the already difficult for investments in RES. Such issues are:
. Ignorance of the existing procedure to be followed by the investor and the general legal framework governing the licensing process of a RES project so as not to waste time and money and at worst it becomes impossible to build the project, due to incompatibility with some existing provisions, restrictions or criteria governing the process.
. Lack of standardization / completeness of any data / studies / folders from prospective investors in the licensing departments, mainly due to ignorance of holdings standards, both at regional. And Ministerial as well as accompanying documentation for RES projects (Topographical surveys, studies, construction). There are cases where the quality of environmental impact studies may lead to in making the investment questionable to the assessment bodies.
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5. Recommendations to improve concession practices in PP countries Romania
5.1. Recommendations for improving concession practices in Romania When implementing the European Directives, the authorities must focus on harmonizing the provisions of RES-e Directive and the provisions of Water Framework Directive. Thus, the concession law should allow the acceleration of the process of obtaining the permits required for the carrying out of a SHP, observing at the same time the provisions of the WFD.
Increasing energy production from RES being a national public interest objective, a recommendation would be to ensure a co-financing from public funds, especially for complex hydropower facilities in execution or likely to be built.
As regards the delayed start of SHP construction, the law through which the beneficiaries of SHP investments are required to provide a financial guarantee for blocking the site (which may be in the form of bank deposit, irrevocable letter of guarantee or other means provided by law and central public authority in the water sector) should be appropriately correlated to the concession law.
Setting up of a unique registration office within the territorial jurisdiction of the National Agency for Cadastre and Land Registration and closely related to the SHP concession database awarded by the Romanian National Water Authority “Apele Romane”.
Italy
5.2. Recommendations for improving concession practices in Italy . A quick alignment of the regional legislation to the national Guidelines regarding the Single Authorization proceeding which have been published only on 18th September 2010.
. The criteria according to which the plants are subject to checking procedure should be changed and connected not only to water quantity but also to how water is derived and returned.
. As regards the EIA procedure, it would be interesting to propose thresholds that are different from the existing ones, which subject the plants to the environmental impact assessment procedure. With the regional by law n. 2834/2009, the Veneto Region defines a different sets of threshold values under which the Screening procedure to verify the environmental impact is automatically satisfied.
. The definition of rules that precisely list the documents to attach to the applications regarding water diversion concession and regarding the authorization to build the power plant is held necessary; in particular, such rules should define:
. technical documents necessary for both diversion concession application and for
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authorization to build and operate the plant;
. technical documents necessary to authorize the power line;
. documents to attach to the applications so that, as contents are concerned, they can be extended to all those aspects that, during examination, will be dealt with also the other Bodies required to issue their opinions and, until today, to issue documents propaedeutic to the granting of concessions and authorizations connected to the construction and commissioning of the plant;
. technical contents necessary to assess technically incompatible applications (competing applications), and for each of them arranging a weighing method that allows to make a choice as free as possible from the discretionary power of each examiner. In particular, the most consistent parameters to establish the technical- economic skills of the applicant should be precisely defined; the rules require that such skills are assessed when choosing competing applications.
. Diversification of authorizing procedures and of the documents to submit according to energy use.
. Official monitoring of flow rates. Austria
5.3. Actions for small hydropower-supports in Austria The following actions to create an appropriate environment for increasing the production of energy from small hydropower through new construction of projects and revitalization of the stock refer to the “Energy strategy” of Austria. It includes the clarification of the small hydropower issues and proposals of the Austrian Federal Economic Chamber in terms of promoting the optimization of small hydropower plants (BMWFJ & Lebensministerium, 2010).
Revitalization of HHP and SHP Objective: In Austria 80% of the SHP (952 MW capacity) are built before 2003. These SHPs have an annual energy production of approx. 15.4 PJ. The increase of the efficiency in the stock and adjustment to changing conditions would increase the annual energy production in case of optimal conditions by 2.5 PJ (BMWFJ & Lebensministerium, 2010):
. Consulting and information offensive for SHP operators
. Incentives through appropriate, aligned and considered public funds (e.g. “Ökostromgesetz” and promotion of environmental measures)
. Optimizing of the public funds
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Greece
5.4. Suggestion for improving practice in Greece
Changing environmental categories from A1 to lower The basic and obvious proposal is to change the environmental category of the vast majority of SHP from class A1 to a lower category. This can be done using many rules and criteria. One way would be to exclude some SHP and some diversions. Proposed for exemption from the A1 category, along with SHP is diversion of less than 4.000 m independent power without dams and reservoirs (as was the JMD 1726).
The purpose of this change is mainly:
. Removal of discriminatory and unfair conditions for licensing
. The removal of major restrictions placed on SHP projects as the restrictions are for other projects subject to category A1
. The decentralization of the environmental permitting process by changing the department of environmental licensing (from the central MEECC. responsible for projects of category A1 to regional office responsible for lower categories of projects under JMD 15393)
. Avoiding the process of issuing multiple ministerial decisions when issuing the Environmental Restriction approval, installation and operating permits.
In this way a significant reduction in time required for the adoption of such decisions will be achieved, responsibility for which can again be of the General Secretary of the region.
Furthermore, without being regarded as the most important the assignment of responsibilities for environmental licensing of SHP of lower than A1 categories to regional services, except that it will reduce the time for decision making it will also free its headquarters from the huge number of applications asked to complete.
Definition of Environmental Supply In order to ensure the functionality of the river ecosystems, we should establish that the ecological benefit could be achieved by specifying the depth (e.g. 20 cm) taking into consideration the following reasons:
. The profile depth of 20 cm corresponds to the extensive of waterways and in no way represents the behavior of mountain streams where the majority of the projects are installed.
. In the majority of mountain streams (especially those steep), the intersection with a depth of 20 cm corresponds to a section of winter or the annual average for the stream and in no case can be achieved even during the whole summer thus satisfying the requirement is impossible.
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. In the majority of mountain streams (cascading) there is no fish fauna and therefore it is not required to maintain navigable sections.
It is more rational if the calculations of the ecological benefits other than groundwater flow through sediments of the riverbed are taken into account to ensure sufficient depth of surface flow to maintain downstream ecosystems and ensure free communication of fish fauna (or the provision of passage of fish). Alternatively, in certain cases restrictions can be placed on the closure of the project during the sensitive months of the year (e.g. summer).
Distinction navigable rivers To avoid all problems mentioned a separation of navigable rivers and watercourses is required (Law 2971/2001). Article 14 of Law 3851/2010 adds paragraph 2 as follows "….. The Minister of Finance is authorized for granting of permits to use foreshore, beach, shore-riparian zones, contiguous or adjacent marine environment and seabed for works to construct plants producing electricity from RES in the land of the country, on islands or islets …..."
Other suggestions The key factors for achieving the objectives outlined above is to facilitate the licensing procedures and the rational sitting of electricity generation projects from renewable energy sources a priority in areas of high potential of renewable. Similarly, it must be remembered that the lack of workforce makes it impossible to meet the deadlines prescribed by the law and makes significant the coordinating role of the Ministry of Development. For these reasons:
. Activate the provisions of Law 3468/2006
. Staff with more competent workers the MEECC
. Activate the service agents of the Commission under the law 3468/2006.
. The Independent Environmental Agency should play an active and supporting role in licensing and in particular when dealing with administrative difficulties and not degenerate into yet another intermediary body with no will.
6. Conclusions
When implementing the European Directives, the authorities have focused on establishing the policy formulation for the promotion of RES-e Directive, on one hand, and the policy formulation for the Water Framework Directive, on the environmental assessment, on the other hand.
The same authorities must encourage the development of methodologies / tools for putting these two European Directives both in agreement and to push forward the energy sector toward renewable energy sources utilization, among which, water is the most important.
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Thus, one of the most important issues of the not very small developments is to highlight also the other benefits of a water sector development, not only the production of electric energy: flood protection, potable water for population, flow regulation.
For different countries in South East Europe, where RES-e and WFD Directives must be applied, there are common but also different approaches for how to act such as to push forward the SHP sector in order to fulfill the demands of the RES-e Directive and to reach the targets thereof, observing the restrictive demands of the WFD. These different approaches have, as main possible reasons, the differences in the stage of development of a country, the stage of development of river sectors and the remaining technical feasible potential. Less remained to be developed, smaller will be the preoccupation to develop hydropower applications. It is also obvious that, if a country is more developed, it could afford to have more environment concerns than other country.
If an application is for a family or small community living in an isolated area, where there is no electrical grid and where there is a river, the only demarche could be a SHP. Regulations could take into account such examples and push the authorities to treat differently these kinds of applications.
7. References Romania
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European Commission Guidelines for Successful Public-Private Partnerships (2003); European Commission Interpretive Communication on Concessions under Community Law (200/C 121/02).
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UNCITRAL Legislative Guide, Chapter 1, Para 7-9.
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National Guidelines for the authorization of plants using renewable sources, 18th September 2010.
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E-Control GmbH (2010a). http://www.e-control.at/en/businesses/renewables/renewable- electricity-market, status 18.08.2010
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European Parliament and Council of the European Union (2000). DIRECTIVE 2000/60/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2000 establishing a framework for Community action in the field of water policy. Official Journal of the European Communities. L 327.
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European Parliament and Council of the European Union (2001). DIRECTIVE 2001/77/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market. Official Journal of the European Communities. L 283.
FAO & DVWK (2002). Fish passes – Design, dimensions and monitoring, published by the Food and Agriculture Organization of the United Nations in arrangement with Deutscher Verband für Wasserwirtschaft und Kulturbau e.V. (DVWK), Rome, 2002
JUSTIZMINISTERIUM: Allgemeines Bürgerliches Gesetzbuch (ABGB), BGBl. I Nr. 51/2005, Wien 2005
Kleinwasserkraft Österreich (2010). Facts and figures. Stand: 2010-08-17. http://www.kleinwasserkraft.at.
Knoblauch, H. (2006): The legal situation in Austria. In: ALPRESERV - Sediment Management Methods – Technical and legal aspects, published by the Universität der Bundeswehr München, Volume 4/2006, ISSN 1862-9636
Oberleitner, F. (2004): „WRG Wasserrechtsgesetz 1959 - MANZ Kurzkommentar“. Manz Verlag, Wien.
ÖWAV (1998): „Entleerung, Spülung und Räumung von Speichern und Becken“. Österr. Wasser- und Abfallwirtschaftsverband, Heft 117, Wien.
ÖWAV (2000): „Feststoffmanagement in Kraftwerksketten“. Österr. Wasser- und Abfall- Wirtschaftsverband, Heft 137, Wien
ÖWAV (2004): „Vorschläge für pauschale Entschädigungssätze bei Kleinmaßnahmen des Wasserbaus, Fischerei-Entschädigungen“. Österr. Wasser- und Abfall- Wirtschaftsverband , Arbeitsbehelf
Raschauer, B. (1993): „Kommentar zum Wasserrecht“. Springer Verlag Wien New York, Wien
Stigler H., Huber C., Wulz C. and Todem C. (2005). Energiewirtschaftliche und ökonomische Bewertung potentieller Auswirkungen der Umsetzung der EU- Wasserrahmenrichtlinie auf die Wasserkraft. (Energy-economical and financial evaluation of the consequences of the WFD implementation on the hydropower production). Institute of Electricity Economics and Energy Innovation, Graz University of Technology, Austria.
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8. Annexes
CONCESSION CONTRACTS TRANSLATED IN ENGLISH FOR PP COUNTRIES
Annex 1. CONCESSION CONTRACTS TRANSLATED IN ENGLISH FOR ROMANIA
Concession contract (for public services or public works)
Concluded today...... at......
I. CONTRACTING PARTIES
1.1. (Ministry, district or local council or local public institution)...... (Locality)...... Str...... no...... , County / sector...... , As grantor, on the one hand, and
1.2. SC...... SNC / SCS / HS / LLC, based in (city)...... Str...... no...... , Block...... , Scale...... , Upstairs...... Apartment...... , County / district...... , Registered with the Trade Register...... , No...... of...... , VAT no...... of...... , With account no...... , Opened...... , Represented by...... , With function...... , As operator, on the other hand,
or
1.2 Association / Foundation...... , Based in (city)...... Str...... no...... , Block.. . . . , Scale...... , Upstairs...... Apartment. . . ., District / county...... , Registered legal persons under civil sentence no...... of...... Of the Court...... , Tax code no...... of...... , With account no...... , Opened...... , Represented by...... , With function...... , As operator, on the other hand
or
1.2. Company / Association...... Based in (city)...... Str...... no...... , Block...... , Scale...... , Floor...... Apartment...... , District / county...... , Owner of permit no...... of...... , Issued by City Hall...... , Tax code no...... of...... , With account no...... , Opened...... , Represented by...... With function......
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. . , As operator, on the other hand,
or
1.2. D...... , Residing...... Str...... no...... , Block. . . . . , Scale. . . . . , Upstairs. . . . . Apartment. .. ., District / county...... , Born on (day, month, year)...... in (town)...... District / county...... Son...... and...... , Voucher holder (book) series identity...... no...... issued...... , Personal identification code...... , As operator, on the other hand,
agreed to sign this lease with the following terms:
II. OBJECT OF THE CONTRACT
2.1. The object of this contract is the failure-taking, the concession of (goods, activities or public services)......
2.2. a) Description of the object and the concession are set out in the attached specifications, which is part of this contract and the operator accepts him fully.
b) The specification is binding, is completing his terms as those agreed by the parties in February).
2.3. Teaching received the concession will be based on minutes that will end up on...... Annex and will be an integral part of this contract.
2.4. Three categories of goods) to be used in developing the concession operator are:
• Real return 4) the return of right free and free of any encumbrances grantor, upon expiry of the concession contract:......
• Real Retrieval 5) that the grantor can return the contract expires, to the extent that the latter expresses its intention to take them, in exchange for a compensation equal to the updated book value, according to the specification:......
• own property in June) on expiry of the concession contract remain the property of the operator:......
2.5. The termination of the concession, in any case, the goods specified in section 2.4. will be assigned according to destinations shown in this section, the operator is obliged to repay in full ownership, free of any charge, including leased property investment.
III. CONTRACT DURATION
3.1. Duration of the concession is...... years from the date of signing this contract.
3.2. Concession contract may be extended for a period equal to more than half of its original length by the mere agreement of the parties will enter into an addendum that will at least.. . years / months / days before his termination.
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IV. PRICE concession
4.1. Price concession is...... Lei indexed in relation to inflation, with an annual fee in cash / kind, the amount / value...... MDL, which will be paid / given by the grantee grantor, annual / quarterly / quarterly / monthly, according to the estimate developed in the appendix, which is part of this contract.
4.2. Failure / delay, no delivery fee or execution of this obligation leads to withdrawal of the concession, with all consequences arising there from, as provided in the specifications.
V. OBLIGATIONS OF THE PARTIES
5.1. Contractual relationship between the grantor and the grantee is based on the financial balance of the concession, namely the achievement of a possible tie between benefits are granted to the concessionaire and the tasks required.
5.2. Consequently, the operator is not obliged to bear the burden related to performance of its obligations, if this increase results from:
• an action or measure ordered by a public authority;
• a case of force majeure or a fortuitous event.
5.3. Grantor undertakes to provide the concessionaire, the concession start date, complete inventory, free of any encumbrance, as provided in the specifications.
5.4. Operator to meet its obligations under the terms and conditions of this agreement and in accordance with legal rules specific to that activity, developed legal institutions authorized for this purpose, as well as those stipulated in the specifications.
5.5. Grantor has the right to verify the period of the concession contract, how the conditions and clauses of the concessionaire, the latter being obliged to provide the grantor all information, documents and records requested.
5.6. Environmental responsibilities are divided between the contracting parties as follows:
• grantor is responsible for:...... ;
• the concessionaire is responsible for:......
5.7. The operator can not in any way under-concession, in whole or in part, to another person, subject of the concession.
VI. WARRANTIES
6.1. The operator is obliged within 90 days after signing this contract to submit as security amount...... Lei sum representing the share of the payment obligation to the grantor, and it established the first year due to 7).
VII. LIABILITY
7.1. If total or partial non-compliance or inadequate performance of the obligations laid down in the specifications and terms of this agreement, the guilty party is liable to pay penalties stipulated in the specification, and if they do not cover damage to the uncovered is obliged to damages.
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7.2. Cancellation points, also after itself damages as follows:......
VIII. MODIFICATIONS TO TERMS
8.1. Grantor may, unilaterally, the regulation of this contract, notice to the operator, for exceptional reasons relating to national or local interest, as appropriate.
8.2. a) If the amendment cancels the contract brings a loss, the concessionaire has the right to prompt an adequate and effective compensation.
b) In case of disagreement between the grantor and grantee of the amount of compensation, it will be determined by the competent court.
c) Disagreement between the grantor and the grantee on damages may not provide a basis for the concessionaire that lead to escape its contractual obligations.
IX. CONTRACT TERMINATION
9.1. This lease shall cease:
• the expiration of the concession;
• if the local or national interest so requires, by cancellation of the concession, with payment of fair compensation and the grantor prior to pregnancy;
• for non-compliance of contractual obligations by the concessionaire, because that leads to unilateral termination of the concession contract, with payment of compensation from the operator;
• for non-compliance of contractual obligations by the grantor, the unilateral termination of contract by the concessionaire, with payment of compensation from the grantor;
• the disappearance of a case of force majeure or if the property leased to the concessionaire of objective impossibility of holding, by waiver, without payment of compensation.
X. FORCE MAJEURE
10.1. Neither of the Contracting Parties shall not be liable for non-term and / or improperly executing - total or partial - of any obligation imposed on it under this contract, if non-performance or improper performance of those obligations was due to force majeure, as defined by law.
10.2. Party invoking Force Majeure shall notify the other party, within...... (Days, hours), the event and take all possible measures in order to limit the consequences.
10.3. If within...... (Days, hours) of production, the event continues, and the parties are entitled to notice of right to terminate this contract without any of them to claim damages.
XI. NOTICE
11.1. The acceptance of both parties, any notification to the other one of them is true if valid will be sent to the address provided in the introductory premises of this contract.
11.2. If notification is by mail, it will be sent by registered letter with acknowledgment of receipt (AR) and is considered received by the recipient on the date mentioned by the Post Office on receiving this confirmation.
11.3. If notification is sent by telex or fax, it is considered received on the first working day after it was sent.
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11.4. Verbal notifications are not taken into account by either party, if confirmed, through one of the ways specified in the preceding paragraphs.
XII. LITIGATION
12.1. If resolution is not possible disputes amicably, they will be subject to settlement of the arbitral tribunal under the rules of procedure applicable to ad hoc commercial arbitration organized by the Chamber of Commerce and Industry of Romania.
XIII. FINAL CLAUSES
13.1. Modification of this contract addendum signed only by the contracting parties.
13.2. This contract, together with its annexes which are part of the content or represents will of the parties and remove any other verbal agreement between them, before or after its conclusion.
13.3. If the parties violate their obligations, by failing to suffer from any injury to the right of enforcement of pledges or cash equivalent of those obligations does not mean it's right or quit.
13.4. This contract was a number...... copies of that...... today...... The date of its signing.
Grantor
CONCESSION
NOTES:
• a) The concession contract is concluded in accordance with Romanian law, regardless of nationality or citizenship of the operator, for a period can not exceed 49 years from the date of its signing. During the concession period is determined based on the payback period of investment to be made by the concessionaire.
b) The concession contract shall be concluded within 30 days from the date on which the grantor has informed bidder's acceptance of his tender, if the specifications otherwise agreed, failure can limit the payment of damages by the party fault.
c) land transfer contracts of any nature, is recorded by the concessionaire in advertising real estate records, within 30 calendar days after their conclusion.
d) Refusal successful bidder to enter into concession will lead to loss of warranty made to participate and, if applicable, payment of damages.
• agreed terms on completing the concession can not contravene the objectives set forth in the specification.
• If supply dealers.
• return goods are goods that have made the concession, and those that have resulted from the investments required in the specification.
• Retrieval goods are goods that belonged to the transferee and were used by him during the concession period.
• own goods are goods that belonged to the concessionaire and were used by him during the concession period, except for property acquisition.
• If necessary, this amount will be levied penalties and amounts owed by the grantee grantor in the
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concession contract. The operator may be as collateral and debt securities, which will be put pledge agreement with the grantor. It will be a similar guarantee, depending on the need to cover future costs, to meet obligations on environmental protection, which may occur during the development concession .
Concession Contract (for public properties goods) Concluded today ...... to ...... I. CONTRACTING PARTIES 1.1. (Ministry, district or local council or local public institution) ...... , (town) ...... , Street ...... no...... , County / sector ...... , as grantor, on the one hand, and 1.2. SC ...... SNC / SCS / HS / LLC, based in (city) ...... , str ...... no...... , ...... , Scale block ...... , floor apartment ...... , ...... , county / district ...... , registered with the Trade Register ...... , no...... of ...... , tax code no...... of ...... , with account no...... , Open ...... , represented by ...... , to function ...... , as operator, on the other hand, or 1.2 Association / Foundation ...... , located in (town) ...... , Street ...... no...... , ...... , Block floor scale ...... , ...... , ...... , apartment district / county ...... , registered legal persons under civil sentence no...... of the Court ...... , ...... , tax code no. Of ...... , with account no...... , Open ...... , represented by ...... , to function ...... , as operator, on the other hand or 1.2. Company / Association ...... , located in (town) ...... , Street ...... no...... , Block ...... , ...... , floor scale ...... , ...... , apartment District / county ...... , owner of permit no...... issued by the City of ...... , ...... , code No tax...... of ...... , with account no. Open ...... , ...... , represented by ...... , to function ...... , as operator, on the other hand, or 1.2. D ...... , residing on ...... , Street ...... no...... , Block floor ...... , ...... , ...... scale apartment ...... , district / county ...... , born date (day, month, year) ...... in (town) ...... District / county ...... , son ...... and ...... , voucher holder (book) series identity ...... no...... , issued personal identification code ...... , as operator, on the other hand, agreed to sign this lease with the following terms: II. OBJECT OF THE CONTRACT 2.1. The object of this contract is the failure-taking, the concession of (goods, activities or public services) ...... 2.2. a) Description of the object and the concession are set out in the attached specifications, which is part of this contract and the operator accepts him fully. b) The specification is binding, is completing his terms as those agreed by parti2). 2.3. Teaching received the concession will be based on minutes that will end up on ...... Annex and will be an integral part of this contract. 2.4. Bunuri3 categories) to be used by the concessionaire to run the concession are: Retur4 goods) which return automatically, free and free of any encumbrances grantor, the expiry of the concession contract: ...... Preluare5 goods) which the contract expires can return the grantor, to the extent that the latter expresses its intention to take them, in exchange for a compensation equal to the updated book value, according to the
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specification: ...... Real proprii6) on expiry of the concession contract remain the property of the concessionaire: ...... 2.5. The termination of the concession, in any case, the goods specified in section 2.4. will be assigned according to destinations shown in this section, the operator is obliged to repay in full ownership, free of any charge, including leased property investment. III. CONTRACT DURATION 3.1. Duration of the concession is ...... years from the date of signing this contract. 3.2. Concession contract may be extended for a period equal to more than half of its original length by the mere agreement of the parties will enter into an addendum that will at least ..... years / months / days before his termination. IV. PRICE concession 4.1. Price concession is ...... Lei indexed in relation to inflation, with an annual fee in cash / kind, the amount / value ...... lei, which will be paid / delivered by the concessionaire grantor, annual / quarterly / quarterly / monthly, according to the estimate developed in the appendix, which is part of this contract. 4.2. Failure / delay, no delivery fee or execution of this obligation leads to withdrawal of the concession, with all consequences arising there from, as provided in the specifications. V. OBLIGATIONS OF THE PARTIES 5.1. Contractual relationship between the grantor and the grantee is based on the financial balance of the concession, namely the achievements of a possible tie between benefits are granted to the concessionaire and the tasks required. 5.2. Consequently, the operator is not obliged to bear the burden related to performance of its obligations, if this increase results from: an action or measure ordered by a public authority; a case of force majeure or a fortuitous event. 5.3. Grantor undertakes to provide the concessionaire, the concession start date, complete inventory, free of any encumbrance, as provided in the specifications. 5.4. Operator to meet its obligations under the terms and conditions of this agreement and in accordance with legal rules specific to that activity, developed legal institutions authorized for this purpose, as well as those stipulated in the specifications. 5.5. Grantor has the right to verify the period of the concession contract, how the conditions and clauses of the concessionaire, the latter being obliged to provide the grantor all information, documents and records requested. 5.6. Environmental responsibilities are divided between the contracting parties as follows: grantor is responsible for: ...... ; operator is responsible for: ...... 5.7. The operator can not in any way sub-concession, in whole or in part, to another person, subject of the concession. VI. WARRANTIES 6.1. The operator is obliged within 90 days after signing this contract to submit as security amount ...... Lei sum representing the share of the payment obligation to the grantor, and it established the first year due to activitate7). VII. LIABILITY 7.1. If total or partial non-compliance or inadequate performance of the obligations laid down in the specifications and terms of this agreement, the guilty party is liable to pay penalties stipulated in the specification, and if they do not cover damage to the uncovered is obliged to damages. 7.2. Cancellation points, also by itself, damages, thus: ...... VIII. MODIFICATIONS TO TERMS 8.1. Grantor may, unilaterally, the regulation of this contract, notice to the operator, for exceptional reasons relating to national or local interest, as appropriate. 8.2. a) If the amendment cancels the contract brings a loss, the concessionaire has the right to prompt an adequate and effective compensation. b) In case of disagreement between the grantor and grantee of the amount of compensation, it will be
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determined by the competent court. c) Disagreement between the grantor and the grantee on damages may not provide a basis for the concessionaire that lead to escape its contractual obligations. IX. CONTRACT TERMINATION 9.1. This lease shall cease: the expiration of the concession; if the local or national interest so requires, by cancellation of the concession, with payment of fair compensation and the grantor prior to pregnancy; for failure to observe contractual obligations by the concessionaire, because that leads to unilateral termination of the concession contract, with payment of compensation from the operator; for failure to observe contractual obligations by the grantor, the unilateral termination of contract by the concessionaire, with payment of compensation from the grantor; the disappearance of a case of force majeure or if the property leased to the concessionaire of objective impossibility of holding, by waiver, without payment of compensation. X. FORCE MAJEURE 10.1. Neither of the Contracting Parties shall not be liable for non-term and / or improperly executing - total or partial - of any obligation imposed on it under this contract, if non-performance or improper performance of those obligations was due to force majeure, as defined by law. 10.2. Party invoking Force Majeure shall notify the other party, within ...... (Days, hours), the event and take all possible measures in order to limit the consequences. 10.3. If within ...... (Days, hours) of production, the event continues, and the parties are entitled to notice of right to terminate this contract without any of them to claim damages. XI. NOTICE 11.1. The acceptance of both parties, any notification to the other one of them is true if valid will be sent to the address provided in the introductory premises of this contract. 11.2. If notification is by mail, it will be sent by registered letter with acknowledgment of receipt (AR) and is considered received by the addressee on the date mentioned by the Post Office on receiving this confirmation. 11.3. If notification is sent by telex or fax, it is considered received on the first working day after it was sent. 11.4. Verbal notifications are not taken into account by either party, if confirmed, through one of the ways specified in the preceding paragraphs. XII. LITIGATION 12.1. If resolution is not possible disputes amicably, they will be subject to settlement of the arbitral tribunal under the rules of procedure applicable to ad hoc commercial arbitration organized by the Chamber of Commerce and Industry of Romania. XIII. FINAL CLAUSES 13.1. Modification of this contract addendum signed only by the contracting parties. 13.2. This contract, together with its annexes which are part of the content or represents will of the parties and remove any other verbal agreement between them, before or after its conclusion. 13.3. If the parties violate their obligations, by failing to suffer from any injury to the right of enforcement of pledges or cash equivalent of those obligations does not mean it's right or quit. 13.4. This contract was made in a number of ...... copies of which ...... , today's signing date. Grantor CONCESSION NOTES:
a) The concession contract is concluded in accordance with Romanian law, regardless of nationality or citizenship of the operator, for a period can not exceed 49 years from the date of its signing. During the concession period is determined based on the payback period of investment to be made by the concessionaire. b) The concession contract shall be concluded within 30 days from the date on which the grantor has informed bidder's acceptance of his tender, if the specifications otherwise agreed, failure can limit the payment of damages by the party fault. c) land transfer contracts of any nature, is recorded by the concessionaire in advertising real estate records, within 30 calendar days after their conclusion. d) Refusal successful bidder to enter into concession will lead to loss of warranty made to participate and, if
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applicable, payment of damages. Clauses agreed to add may not contravene the objectives stipulated in the concession specifications. If goods dealers. Return goods are goods that have made the concession, and those that have resulted from the investments required in the specification. Retrieval goods are goods that belonged to the transferee and were used by him during the concession period. Their goods are goods that belonged to the concessionaire and were used by him during the concession period, except for property acquisition. If necessary, this amount will be levied penalties and amounts owed by the grantee grantor in the concession contract. The operator may be as collateral and debt securities, which will be put pledge agreement with the grantor. It will provide a similar guarantee, depending on the need to cover future costs, to meet obligations on environmental protection, which may occur during the development of the concession.
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Annex 2. CONCESSION CONTRACTS TRANSLATED IN ENGLISH FOR ITALY
MUNICIPALITY OF (name of the Municipality)
PROVINCE OF (name of the Province)
Today, (month, day, year) at the head office of the Municipality of (name of the Municipality) appeared:
. the Municipality of (name of the Municipality) located in (address), tax code no. (number), legally represented by (name, surname), residing in (address), henceforth referred to as MUNICIPALITY; . the Concessionaire residing in (address), tax code no. (number), legally represented by (name, surname), residing in (address), henceforth referred to as CONCESSIONAIRE.
STATED THAT
Having regard to Law No. (number of the act) of (date of the act) concerning the approval of the final project for the construction of the hydropower plant on the river (name of the river) for a total amount of (expenditure of work) €.
Having regard to Law No. (number of the act) of (date of the act) concerning the public tender for works concession, as established by the legislative decree n. 163/2006.
The completion of the tender took place regularly with manner prescribed by the provisions of law.
The notice of the public tender completion was regularly published, in accordance with the art. 65 of the legislative decree n. 163/2006.
The act n. (number and date of the act), issued by the Head of Technical Services, established that the concession contract was finally awarded to the Company (name of the Company), residing in (address).
The documents certifying the fulfillment of obligations contribution was acquired, in according with the current legislation (legislative decree n. 276/2003 and n. 251/2004).
The company that was awarded the contract has subscribed the final guarantee n. (number of the policy) on (date) issued by (name of the body).
THAT BEING STATED
With this contract they stipulate and agree as follows:
. the Municipality of (name of the Municipality) releases to the Company (name of the Concessionaire) the grant to build and manage the hydropower plant on the river (name of the river); the diversion is (type of diversion), the quantity of water to divert is (number) l/s, the maximum quantity that cannot be exceeded is (number) l/s, the average exploited water quantity is (amount) l/s, the average power is (number) kW. . The relationship between the Municipality and the Concessionaire are governed by this agreement. . The works must be carried out in accordance with the technical rules established by the final project approved with (number and date of the act) and with the conditions expressed by the “Special Tender Specification”. . The Special Tender Specification is an integral and substantial part of this contract, even if not physically attached to the same.
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RIGHTS OF THE PARTIES
MUNICIPALITY’S RIGHTS
Upon signing of this contract, the Municipality is obliged to make available to the Concessionaire all projects in its ownership related to this work.
The Municipality is obliged to make available the land on which the plant and the manufacturing facilities related to the service will be built.
The Municipality is obligated to promote the release of any authorization for the hydropower plant construction.
The Municipality is also obligated to promote the release of any further authorizations issued by the competent bodies.
The concession’s duration is 20 years, starting from the date of signing of this contract.
The Concessionaire is committed to perform, for the entire duration of the contract, all ordinary and extraordinary maintenance works on intake structures, penstock, central building, power plant and related structure to ensure the proper functioning of the system and the optimization of production.
The Concessionaire is responsible of the assessed water supply based on the energy production and it has not to require anything if the real discharges will be lower than the concession values.
CONCESSIONAIRE’S RIGHTS
The Concessionaire is directly responsible for the costs related to: construction works, site management in accordance with the design guidelines, final testing.
The costs for the connection to the national electricity network are also charged to the Concessionaire, both for works (conduit, etc.) and for reimbursement to the National Energy Company (ENEL).
The Concessionaire must fulfill the requirements related for the concessions granting, authorizations or permissions for the hydropower plant construction and related plants commissioning.
The costs for the hydropower plant construction are in charged to the Concessionaire who has full responsibility for the work; the estimated cost is (designed cost) €.
The Concessionaire is obliged to carry out the work related to the plants in topic and to find the necessary financial resources for the related plants commissioning.
The Municipality, that is owner of the water diversion concession, is the owner of the hydropower plant and of the related ancillary facilities which are in use to the Concessionaire until the contract expiration.
The power plant, the grit chamber and the intake structures will be managed by the Concessionary under its responsibility.
The Concessionaire shall allow at any time the access to facilities by representatives of the Municipality and provide all documentation necessary to verify the compliance with the contents of this contract.
At the end of the concession period the plant must be delivered in a good condition and functioning condition in accordance with the current legislation.
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The Concessionaire undertakes to pay to the Municipality the following amounts: a) una tantum (specific amount) €; b) fixed annual state fee of (specific amount) € from the signature of the present contract; this fee has to be paid even if the plant doesn't work; c) variable annual state fee equal to (specific percentage) % of operating revenue.
The amount of energy effectively produced by the plant will be recognized at end of each year regarding to the installed control tools; the amounts referred to the points b) and c) will be payable annually in two installments (months shall be specified).
The Concessionaire is not responsible for the non-functioning of the power plant caused by maintenance activities or circumstance- forces.
CONDITION AT THE CONTRACT EXPIRY
At the end of the contract, the assets constituting the overall plant, including any extensions, improvements or innovations made by the Concessionaire, will returned free of charge and in good condition to the Municipality.
TERMINATION CLAUSES
Art. 1456 of the Italian Civil Code states that this contract may be terminated in occurrence of: . repeated contract breaches, payments included; . serious and repeated breaches related to legislative provisions an to this contract, directly attributable to the Concessionaire; . absolute and total inefficiency of the plant management for a period exceeding 30 consecutive days, due to Concessionaire's defaults.
CONTRACT COSTS
All employees and costs resulting from the present contract stipulation will be paid by the Concessionaire.
Signature
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Authors Contact Bogdan Popa e-mail: [email protected] Telephone: +40720528266 Fax: +40214029342
Razvan Magureanu e-mail: [email protected] Telephone: +40214029342 Fax: +40214029342
Saso Šantl e-mail: [email protected]
Daniel Kozelj e-mail: [email protected]
Franci Steinman e-mail: [email protected]
Gerald Zenz e-mail: [email protected] Telephone: +43 316 873 6269
Gabriele Harb e-mail: [email protected] Telephone: +43 316 873 6269
I. Saccardo e-mail: [email protected]
D. Gasparetto e-mail: [email protected]
M. Cesca e-mail: [email protected]
Florentina Isfan e-mail: [email protected] Telephone:+40729842274 Fax: +40213181116
Alexandru Moldoveanu www.seehydropower.eu e-mail: [email protected] Telephone: +40722931166
Project Contact Fax: +40213181116
Ing. Maximo Peviani ANESER S.A. - Serres Development Agency [email protected] e-mail: [email protected] Telephone: +39 035 55771 (switchboard) Telephone:(+30) 23210 64402 Fax: +39 035 5577999 Fax: (+30) 23210 99639