COMMISSION IMPLEMENTING DECISION on the partial suspension of the disbursement of the third instalment of the non-repayable support and the third instalment of the loan support for Romania 

rocedure to allow for the revision of the contract value but rather cancel the ongoing procedure and subsequently re-launch the tender with the new contract value. In addition, the Commission noted that the use of the “suspension” functionality in SEAP appeared to automatically create a discrepancy between the deadline published at national level and the one published at EU level, even where no further modifications concerning the tender conditions were made. Changing the deadline for the submission of tenders should always require publishing a corrigendum in SEAP and OJEU. (66) Second, Article 147 of Law No. 98/2016 transposing Article 52(1) of Directive 2014/24/EU provides that prior information notices, contract notices and contract award notices should not be published at national level before being published in the OJEU. However, exceptionally, such notices may be published at the national level where contracting authorities have not been notified of their publication in the OJEU within 48 hours from the OJEU’s acknowledgement of receipt of the notices. (67) In its preliminary assessment, the Commission noted that in this case, the OJEU notified the contracting authority of its refusal to publish two of the four corrigenda (published in SEAP on 30 March 2022 and 21 April 2022) within the 48 hours deadline. Therefore, for these two corrigenda, the contracting authority should not have published the modifications to the contract notice at national level before their publication in the OJEU, in accordance with Article 147 of Law No. 98/2016 transposing Article 52(1) of Directive 2014/24/EU. (68) Romania provided evidence showing that the OJEU had notified the contracting authority of its refusal to publish the remaining two corrigenda (published in SEAP on 15 May 2022 and 16 October 2022) more than 48 hours after the notices had been sent to the OJEU. Therefore, in the case of those two corrigenda, the contracting authority could duly proceed to publishing the modifications at national level in accordance with the abovementioned provisions in the national and EU legislation (Article 52(1) of Directive 2014/24/EU and Article 147 of Law No. 98/2016). The Commission took the view that OJEU’s late reply did not, however, exempt the contracting authority from re- sending – following the receipt of OJEU’s refusal to publish – the corrected corrigenda to the OJEU for publication and extending the deadline for submission of tenders accordingly, in application of Article 52(2) of Directive 2014/24/EU and Article 148 of Law No. 98/2016, as further detailed below. (69) Third, in line with Article 148 of Law No. 98/2016 transposing Article 52(2) of Directive 2014/24/EU, notices published at national level shall not contain information other than that contained in the notices “published” in the OJEU. Article 52(2) of Directive 2014/24/EU lays down that the notices published at national level should not contain information other than that contained in the notices “dispatched” to the OJEU. (70) While in this case all corrigenda were dispatched to the OJEU through SEAP, they were not in line with the OJEU standard forms and the contracting authority did not address the issues identified by the OJEU to ensure compliance with the publication requirements. In line with Article 142 of Law No. 98/2016, the contracting authority was responsible for ensuring the transparency of award procedures by publishing, in accordance with the provisions of the law, the prior information notices, contract notices EN 17 EN  and award notices. Therefore, the Commission preliminarily concluded that the contracting authority was required to ensure that transparency obligations be complied with by ensuring publication of all modifications to the contract notice at national and EU level. (71) Moreover, the Commission noted that Article 148 of Law No. 98/2016 referred to the obligation incumbent on the contracting authority to ensure that the information published at national level does not differ from that “published” at EU level, rather than “dispatched” to the OJEU, pursuant to Article 52(2) of Directive 2014/24/EU. It follows that the contracting authority was required by the national legislation to ensure that the same level of information be published at national and EU level. (72) In its observations of 15 November 2024 with regard to the requirement that “the tender process shall be carried out in accordance with Law No. 98/2016 and its subsequent amendments, which transposed Directive 2014/24/EU”, Romania reiterated the arguments and justifications, which it had already put forward as part of its submissions of 31 May 2024, 8 July 2024, 9 July 2024 and 19 July 2024. Furthermore, in its observations of 15 November 2024, Romania did not provide new evidence that the tender process was carried out in accordance with Law No. 98/2016 and its subsequent amendments, which transposed directive 2014/24/EU. (73) First, Romania stated that the “suspension” procedure set out at Article 22 of Law No. 101/2016 would not be restricted to the specific cases provided for in that Article. In Romania’s view, it could not be inferred from the absence of explicit provisions regulating the use of the “suspension” in Law No. 98/2016 that such procedure would only apply in case of appeals. Romania reiterated that the use of this procedure was justified by the need to update the technical-economic indicators of the tender, which would not constitute a valid justification for cancelling an ongoing tender procedure based on Article 212(1) of Law No. 98/2016. Nor would the cancellation of the tender have “represented an advantage for the contracting authority because the deadlines for resuming the procedure until the signing of the contract would have been delayed by at least 6 months, which would, implicitly, have been a disadvantage for the fulfilment of milestone 86”. Romania further submitted that potential tenderers were given ample time to adjust their tenders to the new conditions, which would be evidenced by the fact that two valid tenders were received by the deadline. (74) Second, Romania contended that the contracting authority had fully adhered to the principles of transparency and equal treatment by publishing the contract notice and the contract award notice in SEAP and the OJEU. A link to SEAP was included in the contract notice published in the OJEU, thereby giving access to the tender documentation to any potential tenderer. Romania also recalled that in line with Article 147 of Law No. 98/2016 transposing Article 52(1) of Directive 2014/24/EU, contract notices may be published at the national level where the OJEU has not notified the contracting authority of their publication in the OJEU within 48 hours, which was the case for two of the four corrigenda not published in the OJEU. (75) Third, Romania reiterated that the communication between SEAP and the OJEU “is not under the control and the responsibility of the contracting authority, which, once it has fulfilled its obligation to ensure publication (by appropriately checking the publication options and ensuring SEAP information), can no longer control the platforms” and therefore technical issues resulting in not publishing some notices in the OJEU should not be construed as failure by the contracting authority to comply with the transparency obligations laid down by public procurement legislation. EN 18 EN  (76) Finally, Romania argued that in this case the minor non-compliance with public procurement legislation cannot be construed “as having a significant impact on the implementation of works contracts” nor any “consequences on the legality of the contract”. According to Romania, “the principles of transparency and competition were not significantly affected, the proof of this being the very fact that the contracts were signed with companies from the European market”. (77) All aforementioned elements have already been taken into account in the Commission’s preliminary assessment of the payment request relying on the relevant documentary evidence submitted by Romania. Therefore, the Commission maintains the conclusion that, by not ensuring publication in the OJEU of the changes concerning the estimated contract value and the minimum requirements for bidders and not extending the deadline to submit tenders after these substantial modifications to the tender conditions were made, Romania did not fulfil the requirement of milestone 86 that “the tender process shall be carried out in accordance with Law 98/2016 and its subsequent amendments, which transposed Directive 2014/24/EU”. (78) On the basis of the information provided, the Commission concludes that milestone 86 cannot be considered satisfactorily fulfilled as the tender process was not ‘carried out in accordance with Law 98/2016 and its subsequent amendments, which transposed Directive 2014/24/EU’. (79) Regarding milestone 121, measure C6.R2 is entitled “Improving corporate governance of state-owned companies in the energy sector” and its description requires that “The reform focuses on improving the corporate governance of state-owned enterprises, concentrating on the energy sector. In particular, the reform shall improve the transparency and competitiveness of the selection and appointment of members of the management and/or supervisory boards of state-owned companies in the energy sector. Those boards shall be appointed with a 4-year mandate and the system of remuneration shall be based on quantitative and qualitative objectives related to financial and service performance. The implementation of the reform shall be completed by 31 December 2022. The reform shall also complete the listing of at least 15 % shares of Hidroelectrica by 30 June 2023.” (80) Milestone 121 of the Council Implementing Decision, which pertains to measure C6.R2 requires the “Selection and appointment of the members of the management and/or supervisory boards of all national state-owned enterprises (SOEs) under the remit of Ministry of Energy (e.g. Hidroelectrica, Romgaz, Nuclearelectrica) on the basis of a transparent and competitive procedure with a mandate of 4 years and a remuneration scheme based on quantitative and qualitative objectives linked to the financial (such as revenue and return, involvement of state budget) and service performance (such as based on a representative customer satisfaction survey by an independent body) of the undertaking.” The fulfilment of the milestone is subject to the “[completion of the] selection and appointment of management boards”. (81) Romania has not provided to the Commission due justification that this milestone has been satisfactorily fulfilled. (82) Since 15 December 2023, Romania has provided the Commission with the documentation related to the selection and appointment procedure of boards for 14 SOEs under the remit of the Ministry of Energy. Romania considered that out of 26 EN 19 EN  SOEs under the control of the Ministry of Energy 29, only 14 were relevant for the fulfilment of the milestone requirements 30. Romania explained that nine of the remaining 12 SOEs were under bankruptcy or insolvency procedures 31, therefore, a special management regime applies 32. The Commission agreed that those nine SOEs fall outside the scope of the milestone as, based on the information provided by Romania, they had not exited the insolvency procedure at the time of the assessment of this milestone. Of the three remaining SOEs that Romania considered should be excluded from the milestone assessment, two were transferred to the State Assets Agency 33 for reorganisation, and one was under merger procedure with another SOE under the Ministry’s remit, which is among the 14 SOEs above 34. Since those companies remained within the remit of the Romanian State the Commission considers they should be counted towards the fulfilment of the milestone. Therefore, the Commission had assessed compliance with the milestone requirements for a total of 17 SOEs. The last submission of evidence from Romania dated from 12 September 2024. (83) In its preliminary assessment, the Commission took the view that the requirements of the milestone were not met. (84) First, the evidence Romania provided for the selection and appointment of the members of the management and/or supervisory boards of the 17 SOEs did not demonstrate that the selection and appointment of the new members was carried out on the basis of transparent and competitive procedures. (85) Romania contended that the selection and appointment of the members of the boards of the 17 SOEs were carried out in line with Government Emergency Ordinance No. 109/2011 on corporate governance of SOEs, as approved with amendments by Law No. 111/2016 35. In addition, relevant corporate governance legislation 36 and bylaws of the SOEs concerned 37 provide that the nomination and remuneration committee (‘NRC’), 29 The Ministry of Energy exercises the state's role as a shareholder in State-Owned Enterprises (SOEs) operating in the energy sector. The SOEs under the remit of the Ministry of Energy are identified in Government Decision No. 316 of 10 March 2021, concerning the organization and functioning of the Ministry of Energy, as amended and complemented by Government Decision No. 196 of 7 March 2024. 30 These are: Hidroelectrica, Nuclearelectrica, Oil Terminal, Romgaz, Conpet, CNCIR, SAPE, RATEN, Complexul Energetic Oltenia, Electrocentrale Grup, Societatea Electrocentrale Bucuresti, Electrocentrale Craiova, Midia Green Energy S.A. and Complexul Energetic Valea Jiului. 31 These are: Electrocentrale Constanta, Complexul Energetic Hunedoara, SIMTEX, Compania Nationala a Huilei, Societatea Nationala a Carbunelui, Societatea Comerciala pentru inchiderea-Conservarea Minelor, Regia autonomă pentru activitati nucleare and Petrotrans. 32 The corporate governance rules are overridden by Law No. 85/2014 on insolvency prevention and proceedings that dictate how the company is managed in financial distress. 33 These are: Eurotest S.A., Radioactive Mineral Măgurele S.A. Government Decisions No. 640/13.06.2024 and 737/02.07.2024 approve the transfer of the shares held by the Romanian State in Eurotest and Radioactive Mineral Măgurele, respectively, from the Ministry of Energy to the Authority for the Administration of State Assets. 34 This is Institutul de Cercetări Ştiinţifice şi Proiectări Mine pe Lignit SA (ICSITPML) for which the merging procedures have been started with the adoption of Decision No. 1/09.05.2024 of the Extraordinary General Meeting of the Shareholders of ICSITPML to “initiate the merger procedure through the absorption of the ICSITPML by Complexul Energetic Oltenia” and by Decision No. 8/10.05.2024 of the Extraordinary General Meeting of Shareholders of Complexul Energetic Oltenia. 35 Law No. 111/2016 for the approval of the Government Emergency Ordinance No. 109/2011 on the corporate governance of public enterprises, published in the Official Gazette No. 415 of 1 June 2016. 36 See Law No. 31/1990, Article 140^2, GEO 109/2011, Articles 29 and 34, and GD No. 722/2016, Articles 5, 14 and 17, which identify the CNR as an advisory body within the management or supervisory boards of the SOEs. 37 SOEs’ internal rules for the nomination and remuneration committee which complement the applicable legal provisions concerning corporate governance of public enterprises; the provisions