Companies can no longer be barred from concession tenders just because they are under criminal investigation

An ongoing criminal investigation can no longer keep a company out of concession tenders. The Constitutional Court of Romania has upheld the exception of unconstitutionality raised by two companies and found that Article 81(4) of Law no. 100/2016 on works concessions and service concessions is unconstitutional. It is the second time in eight years that the Court has struck down a rule drawing consequences from an unfinished criminal case, after the automatic suspension of a public official who concludes a plea agreement with the prosecutor was itself narrowed this summer on closely related reasoning.

The case began with a waste management tender. Polaris Mediu, of Târgu Jiu, and Polaris M Holding, of Constanța, were challenging the outcome of the procedure for awarding the contract delegating the public sanitation service of the town of Năvodari, and the file had reached the Constanța Court of Appeal after a decision of the National Council for Solving Complaints. The court referred to the Constitutional Court the criticism directed at the text on the basis of which an operator could be removed from the competition.

The text provided, in short, that the exclusion ground for grave professional misconduct also applied where the economic operator, or one of the persons in its management or supervisory bodies, was subject to judicial investigation proceedings for one of the serious offences listed in the law: participation in an organised criminal group, corruption, offences against the financial interests of the European Union, terrorism, money laundering, trafficking in vulnerable persons, fraud.

What it changes in practice

The first effect is the direct one. From publication in the Official Gazette of Romania, that is from 23 July 2026, Article 81(4) of Law no. 100/2016 may no longer be applied by any authority and by any court. Decisions of the Constitutional Court are final and generally binding, under Article 147(4) of the Constitution.

The second effect is the one that counts in practice, and it is narrower than it looks. The text that fell had already been expressly repealed by Article III point 17 of Government Emergency Ordinance no. 114/2020, published in Official Gazette of Romania no. 614 of 13 July 2020. The Court examined it nonetheless, because its legal effects continue to be produced in disputes arising from older award procedures, and in this case the procedure had been launched on 12 November 2019. For a concession tender organised today, the decision changes nothing: that legal basis has not existed for six years.

The third effect is the possibility of revision. The Code of Civil Procedure allows, in Article 509(1) point 11, the revision of a final judgment where the Constitutional Court declares unconstitutional a provision that was the subject of the exception raised in that very case. The time limit is three months from publication of the decision, under Article 511(3), so it expires on 23 October 2026.

The fourth effect concerns the coherence of the law. In 2018, through Decision no. 738, the Court had struck down the identical text in the public procurement law, Article 167(4) of Law no. 98/2016. Its twin in the concessions law stayed in force for another two years and was removed only by repeal, not through constitutional review. Now this one too is declared unconstitutional, on the same grounds.

What has changed compared with the previous situation

Law no. 100/2016 has two clean exclusion mechanisms, and the Court left both untouched. The first, in Article 79(1), requires the contracting authority to remove an operator convicted by a final judgment for the offences listed in that text. The second, in Article 81(1)(c), allows exclusion for grave professional misconduct which renders the integrity of the operator questionable, but only where the misconduct has been established by a decision of a court or of an administrative authority.

The paragraph that fell was something else. It classified as grave professional misconduct the mere existence of an ongoing investigation, which moved the judgment on the integrity of the company out of the hands of the court and into the hands of the contracting authority. The Court said explicitly that, in this way, the contracting authority came to enjoy a wide margin of appreciation over the circumstances of an alleged criminal act and to draw conclusions about the reputation of the operator before its guilt had been finally established.

The relationship with European law has changed as well. The Court noted that this exclusion ground was an addition to Directive 2014/23/EU on the award of concession contracts, Article 38(7)(c) of which requires the authority to be able to demonstrate by appropriate means that the operator is guilty of grave professional misconduct. An ongoing investigation demonstrates the guilt of no one.

Finally, a point of principle reaching beyond concessions has been settled: the presumption of innocence is not a guarantee reserved to natural persons. From the moment the Criminal Code regulates, in Title VI, the criminal liability of legal persons, a company enjoys the rule in Article 4 of the Code of Criminal Procedure, under which any person is presumed innocent until guilt is established by a final criminal judgment. The Court invoked, to the same effect, the case law of the European Court of Human Rights and that of the Court of Justice of the European Union.

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