Different procedures to acquire the public domain.
We must mention that besides the right to public property of the state and the administrative-territorial units, the doctrine consecrated also the right to private property of the state and of the administrative-territorial units, while the following types of goods are part of its object: vacant possessions, cars, equipment, plantations, etc.
In order to have a clear understanding and for a better structure of the notions, the doctrine defined the public domain of the state and of the administrative-territorial units as the total amount of goods found in public property, and the other goods that belong to the same holders are in their private property and form the private domain of the state and the administrative-territorial units. The two domains, the public one and the private one of the state and the administrative-territorial units form the administrative domain.
1. Processes for establishing the common law public domain and public processes
In their quality of legal entities of public law and holders of the property right on the goods that compose this domain, the state and the units of the territorial administration can acquire the necessary goods through certain juridical documents of civil law, such as: the contract of sale, contract of exchange, donations and legacies or through civil juridical actions: accession, merging.
There has been admitted the possibility that the authorities of the public administration acquire goods by using certain special processes, dominated by the principles of public law and subject to an exaggerated administrative juridical regime, because of the fact that the juridical act of private law is based on a willingness agreement between the contracting parties and is based on the principle of equality, which makes the achievement of the goal even more difficult, even impossible
In order to build the public domain, the doctrine and administrative practice consecrated several procedures used in the public law, one of them being the incorporation. By incorporation we understand the juridical act or the material deed on the grounds of which a certain good enters the public domain. The incorporation represents the process of acquiring, in a natural way, the public properties upon the goods of the public domain. From the moment when a good fulfills the natural conditions provided by the law, it is considered to be an object of the public domain. (3) In order to understand the way in which the incorporation is made, it is necessary to make the distinction between the natural public domain and the artificial public domain.
The natural public domain is the one made through a natural act, while the authority of the public administration is left with the obligation to determine its existence. (4) For example, we show that in this category we can mention the following natural goods, respectively: natural parks, natural reservations, seaside, territorial sea, the natural resources of the continental shelf, etc.
The natural public domain originates in natural phenomena, and building it implies both the acquisition and the simultaneous incorporation of the goods in the domain of the legal entity of public law, such as the case of seaside, territorial sea, air space, water flows and lakes, on which the government intervenes in order to determine by unilateral juridical act, the occurrence of the natural phenomenon and to delimitate the domain.
The artificial public domain, in the case of this domain, the good is incorporated based on a legal act of damage, act which has been previously issued by the holder of the public domain, more precisely by the administration.
The artificial goods that are the object of the public domain are the ones created by human intervention, such as: railway stations, telecommunication networks, seaports and river ports, etc.
Another procedure of building the public domain is the affecting which is done through an administrative act of authority by which the issuing public authority exerts its prerogatives that come from its right of property on the good. The act of affectation determines the destination and usage of the domain good, respectively its utility, which may get down to people directly or through a public service.
The area of goods of the public domain may be modified in time, by being expanded or collapsed.
The dismantling or decommissioning represent the juridical act or material deed based on which a good gets out of the public domain and enters the private domain, with the possibility of being sold through bargain or by public auction, except for the goods provided at art. 136 align (2) from the Constitution, which are the exclusive object of the public property.
Starting from the same reasoning, the sphere of the goods of the public domain may be expanded, by embodying certain goods that do not belong to the public domain and which, by expropriation for the public utility, in the case of buildings or by requisition, in case of the movable goods or by the transfer from the private domain of certain goods that are a part of the public domain.
Under the conditions provided by the law, the holders of the right of property on the goods that form the public domain have the competence to appreciate both the opportunity and the process of dismantling. The normative acts, most of the times, provide the way in which a domain good loses this character, by indicating the nature of the juridical act.
In Professor Iulian Nedelcu's opinion, "one of the most effective ways that the state and the administrative-territorial units can use in building the public domain is the administrative contract, institution found at the crossroads of the public law and private law, which without anticipating more, is the juridical institution which approaches the state of the particular natural and legal entities in a special way." (5) Law no. 213/1998 regarding public property and its juridical regime regulates in art. 7, 8, 9 and 10 the process of building the public and private domain of the state.
Thus, from art. 7 of Law 213/199 it results the fact that the right to public property is acquired: naturally, by public acquisitions made under the conditions of the law; by expropriation for the public utility; by acts of donation or legacies accepted by Government or the local council, if the good in cause enters the public domain; (6) by passing these goods from the private domain of the state or of the administrative-territorial units in their public domain, for causes of public utility; by other ways provided by the law.
2. Special processes of forced creation of the public domain
Besides the traditional ways, specific to the private law, the state and the administrative-territorial units have been recognized the possibility to use processes of forced transmission of the goods, which imply the use of constraint upon the holder, in order to give away its good for a general interest.
The processes of forced transmission of the property law in the Romanian law are: the expropriation for a public utility cause, requisitions and acts of donation or legacies accepted by the Government or by the local council, after case.
The expropriation for a public utility cause. By expropriation we understand the forced transmission in the public property, by court decision, of certain buildings that are in private property, by also giving rightful and prior compensations, based on a cause of public utility (7).
In some doctrinaires' opinion, "the expropriation for a public utility cause is an original way of acquiring the property by a forced transmission of certain determined goods from the private property into the public property, with a view to fulfill certain necessities of national or local interest, after a rightful and prior compensation established by bargain or based on a court decision." (8)
By analyzing these considerations we can conclude that the procedure of creation of the public domain, by creating the property right straight into the patrimony of the state or of the administrative-territorial unity, without talking about the fact that the acquisition comes from a transmission of the property right, especially since the Law regarding the expropriation for public utility cause uses the term of "transfer," a juridical different term than "transmission" and justifies its use by the fact that the state acquires the property right upon the expropriated good contrary to the willingness of the initial holder, as we cannot talk about a discussion between the two, about an agreement of willingness by which the property is acquired, case in which the expropriation would not have been necessary.
The juridical nature of the expropriation is a theme disputed between the civil law authors and the administrative law authors. According to the constitutional provisions the Romanian Parliament adopted Law no. 33/1994, (9) regarding the expropriation for public utility cause. This act includes both disposals meant to ensure the right legal frame of the expropriation procedures, but also establishes the compensations, as well as the effective defense of the right to private property.
In exchange, Law no. 213/1998, (10) at art. 7 letter c) expressly defines the expropriation as being a way to acquire the right to public property and therefore we consider that establishing the legal nature of this juridical operation must be realized, from the point of view of the administrative law, through what it represents, as effects, for the public property, and not by the effects produced upon the private property.
The expropriation intervenes only if the parties cannot reach to a conclusion regarding the procedure of transmission of the building into public property (sale, donation, exchange, etc.) and the quantum of the compensation, under these conditions being mandatory to solve the problem by the juridical instance, which will pronounce a decision by complying with the legal provisions.
The law includes general disposals, referring to: previous research, depending on the interest that lies at the grounds of the expropriation; the declaration of the public unit for the works of national or local interest, by decision; the rights of the expropriated person. The expropriation was limited regarding the scope by which it is made, the goods subject to the expropriation, the competent authorities that can decide upon it and the expropriation procedure itself.
The principles that determine the juridical regime of expropriation spring from Law no. 33/1994 and are as follows:
--the expropriation is a procedure of forced acquisition of the buildings necessary for executing of some works of national or local interest specific to the public law.
--it can be decided only for a public utility cause;
--the expropriation is made only according to certain special procedures and only after a rightful and prior compensation, established by court decision.
The expropriation is a procedure used by the state and its administrative-territorial units of forced acquisition of the movable goods: fields, buildings, immovable goods through destination of through the object they apply at.
Even if certain private institutions of natural entities administer a public service they are not recognized the competence of expropriation because the holders of this right are the state and its administrative territorial units.
The Requisition. The requisition represents a procedure of forced acquisition of certain goods belonging to economical agents, public institutions, natural and legal entities by transferring the right to property on the respective goods unilaterally and under special circumstances, in the area of the public domain. (11)
Thus, it is allowed to the administration, unilaterally, in the mane of the general interest to impose the transfer of the right to property on the respective goods, as well as the quantum of compensations under special circumstances required by the interests of the country or of the security of the state.
The requisition is regulated by Law no. 132/1997, (12) regarding the requisitions of goods and services in public interest. In the sense of the legal regulation, by requisition we understand the provision of certain goods belonging to natural or legal entities to the forces that have as objective the national defense, or to other state organs, for temporary use, with a view to defense the country, the public order and the security of the state, as well as other cases provided by the law.
The requisitions can be disposed during the time when the necessity state lasts, or the declaration of general mobilization or the state of war, but also in case of applications, with a view to prevent or remove certain natural hazards, epidermis, catastrophes or general dangers.
The requisitions do not only refer to the acquisition of certain movable goods for the public domain or the temporary use of these goods, but also to the performance, by the natural entities, of certain services, namely performing some concrete lucrative actions as soon as the necessity state is proclaimed, or the general or partial mobilization or the state of war.
The requisitions have the character of forced rentals in case of goods attributed in temporary use.
According to article 5 from Law. No. 132/1997 the state can commandeer auto, naval, air and animal traction transportations, installations and aerodrome techniques, telecommunications, building techniques, topographical materials, spare parts, repairing materials, fuel and equipment for their transportation, buildings, fields, animals, feed and other goods necessary to the armed forces, civil personnel that accompany them, authorities of the state, refugees, population, war prisoners, including for the good functioning and exploitation of the communication methods, economic agents and public institutions.
The law contains norms referring to the compensations paid to the holders subject to requisitions. The compensations are established by taking into account the nature of the goods, the type of requisitions and other legal dispositions regarding the evaluation of the compensations and the payment for the work performed. The quantum of the compensations is established according to the juridical norms applicable in case of expropriation of these goods, in case of the destroyed buildings, in case of goods that were commandeered but do not have an established price, the evaluation of the compensation is made by comparison with the price of the similar products and reported to the state of usage of the goods at the date of the requisition.
The procedure enforced by this law has in view the excessive role of the authorities of public administration, compared to the private holder, who is paid the compensation for the good after giving away the good and therefore these compensations will not be established or granted in advance.
When the term has been fulfilled or the causes have ceased, the goods are given back to the holders, with minutes of refund, being granted the legal compensation for the requisitions.
The perishable goods can be commandeered for always, by paying the compensations provided by law.
Thus, for the non-perishable goods commandeered, the compensations are granted as follows:
--by rent, whose payment is established by the Government decision;
--by giving the corresponding difference of value, for the goods that are returned with major damages;
-by giving a similar good or by paying the value of the good, established based on the technical conditions and usage degree at the moment of the requisition, if from objective reasons, it cannot be returned anymore.
According to the law, the holders of the commandeered goods have the right to compensations, if the goods had major damages and also, during the requisition, the holders and exempted from paying taxes for the respective goods, and the obligations that come from the legal contracts are suspended.
The methodology, the organizational frame and the criteria of evaluation of the compensations, are established by Government decision
In conclusion, the procedures regulated by the law of creating the public domain are mainly: expropriation for public utility cause and requisition.
From the comparison of the two procedures of creating the public domain, we can conclude the following aspects: there are procedures that imply the acquisition of the right to property straight into the patrimony of the holder, state or administrative-territorial unit, by a transfer and not a transmission. The difference among these two terms brings up the fact that the acquisition of the property on the goods did not take place by an agreement of willingness between the holder and the state, by a convention, but it is imposed either by a public utility cause, in the case of expropriation or by special circumstances, in case of the requisition, Another common element of the two is related to the payment of compensations, paid previously to the ex-holder after giving the good and not prior to it, in case of requisition.
(1.) Lucian, I. (1997), Romanian Civil Law. Real Rights. Brasov: Omnia, 31.
(2.) Alexandra, I., M. Carausan, and S. Bucur (2007), Administrative Law. 2nd edition, Bucharest: Lumina Lex, 409.
(3.) Giurgiu, L. (1997), The Public Domain. Bucharest: Ed. Tehnica, 103-104
(4.) Alexandra, I., M. Carausan, and S. Bucur, op.cit, 421.
(5.) Nedelcu, I. M. (2009), Administrative Law and Elements from the Science of Administration. Bucharest: Universul Juridic, 481.
(6.) Nedelcu, I. (1994), Elements of Administrative Law and Science of Administration, Craiova: Oltenia Publishing House.
(7.) Alexandra, I. Carausan,M. Bucur, S. op.cit., 423.
(8.) Dogaru,I. Sambrian, T. (1996), Romanian Civil Law. The General Theory of the Real Rights, vol.II, Craiova: Europa, 334, apud Nedelcu, I.M op.cit., 483.
(9.) Law no.33/1994 regarding the expropriation for public utility cause, Romanian Official Gazette, part I, no.139 from 2 June 1994.
(10.) Law 213 from 17 November 1998 regarding the public property and its legal regime, Published in Romanian Official Gazette no. 448 from 24 November 1998.
(11.) Alexandru, I. Carausan,M. Bucur, S. op.cit., 425.
(12.) Law no.132/1997 published in Romanian Official Gazette, Part I, no.161 from 18 July 1997, modified by Law no.410/2004, Romanian Official Gazette, part I, no.986 from 27 October 2004.
Adriana Magdalena SANDU
Spiru Haret University, Craiova
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|Author:||Sandu, Adriana Magdalena|
|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2012|
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