Amendments to the Law No. 554/2004 introduced by Law No. 212/2018

• Author: Elena Mihaela Fodor
• Position: PhD, Associate Professor, Faculty of Law Cluj-Napoca, 'Dimitrie Cantemir' Christian University, Romania
• Pages: 143-162

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 143

Amendments to the Law No. 554/2004 introduced by Law

No. 212/2018*

Elena Mihaela Fodor, PhD, Associate Professor,

Faculty of Law Cluj-Napoca, „Dimitrie Cantemir” Christian University, Romania

Abstract

The paper discusses the amendments regarding the definition of the administrative

act, the limitations of the control of the contentious administrative courts, the prior

procedure, the object of the legal action, the competence of courts, the parties, the

procedure and the enforcement of the court decision. The analysis of the amendments

introduced in the Law no. 554/2004 by Law no. 212/2018 is made in corroboration with

other normative acts. Generally, the legislator managed to harmonise the provisions of the

Law no. 554/2004 with other normative acts and at the same time, to preserve the specific

of the contentious administrative. However, dispute procedure for the administrative

contracts together with the rules for contesting the first instance decision do not respond

to the specificity of the administrative law.

Keywords: Law no. 554/2004, contentious administrative, prior procedure,

administrative act, administrative contract [K39, K41]

1. INTRODUCTION

Since its enforcement, Law 554/20041 of the contentious administrative has

suffered many alterations. Some of them were driven by decisions of the

Constitutional Court of Romania, other by the will of the legislator who tried to

improve the procedure in accordance with the principles of public law that

govern the area of contentious administrative. The law has even risen a conflict

of ideas between the legislator, the Constitutional Court and the High Court of

Cassation and Justice regarding the possibility of establishing the legality of an

individual administrative act during any type of lawsuit, no matter when the

administrative act was issued, according to the dispositions of art. 4 para. 1

regulating the plea of illegality. The Constitutional Court agreed with the

* This paper has been presented at the 5th Annual International Conference on Law and

Administrative Justice from an Interdisciplinary Perspective, 23rd-25th November 2018, Bucharest,

Romania.

1 Published in the Official Gazette of Romania, Part I, no. 1154 from 7 December 2004.

Law Review  vol. X, issue 2, July-Decembre 2019, pp. 143-162

144 ELENA MIHAELA FODOR

legislator, maintaining the text as being in accordance with the Romanian

Constitution and the European Convention of Human Rights, but the High Court

of Cassation and Justice refused to apply the same text, claiming that it is against

the principles derived from the case-law of the European Court of Human Rights

and the Court of Justice of the European Union and decided that only individual

administrative acts issued after the enforcement of Law 554/2004 may be verified

under the dispositions of art. 4. Although the case-law of the High Court of

Cassation and Justice remained constant and was followed in time by all the

courts, the legislator has not amended the text of art. 4 in accordance with the

case-law of the courts.

Several amendments were introduced in the Law 554/2004 of the

contentious administrative by the Law 212/20182. Some of the amendments are

consequences of decisions of the Constitutional Court of Romania, others seek to

improve the procedure rules, either in accordance with the Civil procedure code

or in accordance with the specific requirements of the principles of public law

which govern the contentious administrative. We will concentrate our study on

the amendments introduced for these reasons, as well as on the amendments

regarding the definition of the administrative act and the administrative

contracts mentioned by the Law 554/2004. In the latter case, an analysis of the

history of these legal dispositions is done, in order to conclude upon the solution

introduced by the Law 212/2018.

2. THE DEFINITION OF THE ADMINISTRATIVE ACT

Law 554/2004 is defining the administrative act per se and acts that are

taught administrative acts. Romania has not adopted yet a law regarding the

administrative procedure, so it was considered that some definitions have to be

shaped in this law for the purpose of the contentious administrative procedure.

According to art. 2 para. 1 letter c), the administrative act is the act with an

individual or normative character, issued by a public authority exercising public

power with the aim of organising the implementation of the law or of

implementing the law, which creates, modifies or ends legal relationships. The

definition considers the main characteristics of the administrative act referred to

in the doctrine, respectively the aim to organise the implementation of the law or

to implement the law (Iovănaş, 1977, p. 219) and the fact that it is issued in the

exercise of public power (Iorgovan, 2002, p. 24). The original form of the law

considered that are taught administrative acts the contracts concluded by the

public authorities having as object the enhancing of public property value, the

2 Published in the Official Gazette of Romania, Part I, no. 658 from 30 July 2018.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 145

carrying out of public works, public service delivery and public procurement. It

also specified that by special laws other administrative contracts may be

submitted to the control of the administrative courts. That implied that

administrative contracts, other than the ones expressly referred to by the

wording of art. 2 para. 1 letter c) may be subjected to the control of the

administrative courts only if the special law regulating such contracts contained

dispositions in that sense. Otherwise, those administrative contracts will be

subjected to the control of civil courts (Iorgovan, 2004, p. 284). It has to be noticed

that the notion of administrative contract was mentioned for the first time in a

law by the Law 554/2004, until then, the existence of such a contract being a

subject of controversy in the Romanian doctrine. Some authors accepted the

concept born in the French law (Gilescu, 1970, p. 122) other rejected it

(Teodorescu, 1929, pp. 394-397). For this reason the legislation issued after 1989

considered that contracts that were typical administrative contracts in the French

law, such as the concession contract, should be submitted to the control of the

civil courts. Law 554/2004 marked a direction by recognising the administrative

contract as a distinct category. It did not provide a definition, but considered it a

taught administrative act and mentioned four categories, depending on the object

of the contract.

Law 212/2018 modified the content of art. 2 para 1 letter c), maintaining only

the definition of the administrative act per se and introduced a new letter, c1)

referring to administrative contracts. Art. 2 para. 1 letter c1) asserts that are

taught administrative acts the contracts concluded by the public authorities

having as object the enhancing of public property value, the carrying out of

public works, public service delivery and public procurement and that other

administrative contracts may be regulated through special laws. This expression

of the law implies that any contract defined by a special law as being an

administrative contract is considered a taught administrative act and will be

subjected to the control of the administrative courts.

It would seem that the legislator has decided to enlarge the area of control of

the administrative courts, form administrative contracts named by Law 554/2004

and given into the competence of administrative courts by special law, to

administrative contracts named by the Law 554/2004 and all other

administrative contracts, with the exception, of course, of those for which special

laws establish the competence of control in favour of other courts. But this

impression is tempered by the special dispositions of the Law 554/2004

regarding the specific procedure applied to the administrative contracts, as

modified by the Law 212/2018, as discussed further.

146 ELENA MIHAELA FODOR

3. AMMENDMENTS FOLLOWING DECISIONS OF THE

CONSTITUTIONAL COURT

Administrative acts with limited control possibilities

The original form of the Law 554/2004 mentioned in art. 15 para. 3 a set of

administrative acts for which the control of the administrative courts was

limited: the administrative acts issued for the implementation of the state of war,

the siege state or the emergency state, the ones regarding the national defence

and security or the ones issued for re-establishing the public order, as well as for

removing the consequences of natural calamities, epidemics and epizooties.

The limitation consisted, first of all, in the fact that such administrative acts

could be subjected to the control of the administrative court only for reasons

concerning the excess of power. It was considered that legal acts issued in such

circumstances aim to limit some of the human rights normally protected by the

Constitution in order to protect the public interest, limitations being permitted in

accordance with art. 53 of the Romanian Constitution in situations similar to

those mentioned in art. 5 para. 3 of the Law 554/2004. For this reason, the only

reason a court could examine the legality of the act was to find out if the act was

necessary in the aforementioned circumstances in a democratic society and if the

limitation is proportionate with the pursued objective (Iorgovan, 2004, p. 307). It

was thus impossible to contest the legality of such an administrative act for

reasons related, for example, with procedural irregularities. The solution looked

for a balance between the emergency of the situation and the finality of public

interest pursued by the administrative act on one hand and the protection of

human rights on the other hand.

Other limitations consisted in the fact that a request for suspending the

effects of such administrative acts according to the provisions of art. 14 of the law

(after the prior procedure but before a claim in court has been introduced) was

not admissible. The emergency appeal procedure, regulated by art. 21 of the Law

554/2004 in its original form, was not admissible either.

The Constitutional Court was presented with a plea of unconstitutionality of

the text that included the administrative acts regarding national defence and

security among those with a limited possibility of control in court. The

Constitutional Court found, in the decision no. 302/20113, that although art. 52

para. 2 of the Constitution mentions that the conditions and limits of the right to

contest in court administrative acts are to be established by an organic law (and

Law 554/2004 belongs to this category), the exclusions from the control of the

courts are established by art. 126 para. 6 of the Constitution, which only excludes

3 Published in the Official Gazette of Romania, Part I, no. 316 from 09 May 2011.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 147

the administrative acts in relation with the Parliament and the military

commandment orders. Thus, it was concluded that excluding the administrative

acts regarding national defence and security from the control of the courts, in

case the reason for the claim was other than the excess of power, was

unconstitutional.

Following the reasoning from decision no. 302/2011 of the Constitutional

Court, Law 212/2018 removed the limitation regarding the motives that could be

invoked in a claim to court concerning all the administrative acts referred to in

art. 5 para. 3 of the Law 554/2004. The content of art. 21 of the original form of

the Law 554/2004 has been already repealed by the Law 262/20074. In these

circumstances, the Law 212/2018 reformulated the text of art. 5 para. 3, stating

that in the case of disputes concerning the administrative acts issued for the

implementation of the state of war, the siege state or the emergency state, the

ones regarding the national defence and security or the ones issued for re-

establishing the public order, as well as for removing the consequences of natural

calamities, epidemics and epizooties, the effects of such acts cannot be suspended

according to the provisions of art. 14 of the law. The only possibility for

demanding in court the suspension of the effects of such administrative acts

remains the one regulated by art. 15 of the Law 554/2004 that can be introduced

together with or after the request for the annulment of the illegal administrative

act has been submitted to court.

The prior procedure for the one injured by an administrative act addressed

to another

The one injured by an administrative act addressed to another is known in

the doctrine and case-law as “the injured third party”. This person is not a party

in the legal relationship born between the administrative authority that issued an

individual administrative act and the beneficiary of the act, being outside this

relationship, but is injured by the effects of the act that prevail against others.

Law 554/2004 consecrated the right of the injured third party to contest the

administrative individual act addressed to another, if the act adversely affects

one of his rights or legitimate interests. Such a possibility was recognised before

by the case-law, as art. 48 of the Constitution provided that anyone injured by an

administrative act may contest it in court (Fodor, 2008, p. 344).

The first law of the contentious administrative adopted after 1989, Law

29/1990, established the obligation to perform the “prior procedure” for the

person injured by the individual administrative act. Art. 5 of the law showed that

the injured person shall apply to the issuing authority, or its superior, to revoke

4 Published in the Official Gazette of Romania, Part I, no. 510 from 30 July 2007.

148 ELENA MIHAELA FODOR

the act within 30 days from the date when the act was notified to him. It was

decided in the case-law that for the third party the 30 days interval starts with the

date he had taken notice of the existence of the harmful act5.

Law 554/2004 regulated the prior procedure in art. 7. In the first para. of the

article a time limit of 30 days is provided for the beneficiary of the harmful act to

perform the prior procedure. Para. 7 of art. 7 shows that this interval can be

extended for good reason up to 6 months starting with the date the act was

issued. In para. 3 of this article was shown that the third party is entitled to the

prior procedure, from the moment he had taken notice, in any way, of the

existence of the act, within the time interval of 6 months mentioned by para. 7 of

the same article. Para. 7 of art. 7 regulated a time interval of 6 months starting at

the moment the individual administrative act was issued. The 6 months are

defined as a statute of limitations. In the case-law, the entitlement referred to by

para. 3 was considered an obligation.

The most frequent situation when an administrative individual act injures a

third party is the case of building permits that may bring harm to the legal rights

of the neighbours. Such a situation was used as an example by the initiator of

Law 554/2004 in explaining the meaning of art. 7 para. 3. It has been shown that,

in the case of the building permits, neighbours are able to take notice of the

existence of a building permit from the panels fitted on the land that have to

present the building conditions in public (Iorgovan, 2004, p. 315). A plea of

unconstitutionality was brought before the Constitutional Court, derived from a

case where a third party was injured by a building permit. The plaintiff claimed

that in his case, the existence of the building permit issued to his neighbour was

made public after the time limit of 6 months starting from the moment the

building permit was issued. In these conditions, the statute of limitations, the

way it was defined, obstructed the access to justice of the injured third party.

Through Decision no. 797/20076, the Constitutional Court found that para. 7 of

art. 7 from the Law 554/2004 was unconstitutional if it applies to the injured

third party. The reasoning of the decision emphasized that no time limit may

begin to run until the injured third party takes notice of the existence of the act

and that it cannot be conceived that a time limit can be completed before the

injured third party took notice of the existence of the harmful act.

After the publication of the Constitutional Court’s decision the legislator did

not amend the law in respect to art. 7 para. 7, so it remained unclear if the time

limit to exercise the prior procedure for the injured third party was 6 months, as

referred to in para. 3 of art. 7 or 30 days, similar to the one for the beneficiary of

5 Bucharest Court of Appeal, Chamber of Administrative and Fiscal Contentious, civil decision

no. 1231/2007, https://legeaz.net/spete-contencios/anulare-act-acte-ale-autoritatilor-1231-2007,

accessed 11.01.2019.

6 Published in the Official Gazette of Romania, Part I, no. 707 from 19 October 2007.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 149

the harmful act. One opinion was that the time limit of 30 days applies both for

the beneficiary of the act and the injured third party. This term can be extended

up to 6 months starting with the day the act was issued for the beneficiary or the

day the person took notice, in any way, about the existence of the act for the third

party7. Another opinion was that for the injured third party the time limit for

lodging the prior procedure is 6 months, as stated by para. 3 of art. 7, starting

from the date the injured third party took notice, in any way, about the existence

of the act (Bogasiu, 2014, p. 237). Our comment at the time was that the last

opinion was right (Fodor, 2015). It is not enough that the third party takes notice

about the existence of an administrative act addressed to another. The third party

has to find out if the administrative act is harmful for him, if the administrative

act is legal or not and then to decide if it will contest the act or not. In connection

with building permits things are more complicated, as the third party can

establish if the administrative act addressed to another is harmful for him and if

the act is legal or not. In most of the cases such information are to be found in the

technical documentation that was authorized by the building permit. But the

local authorities do not provide easily information about the technical

documentation to a third party, in most of the cases the court action being a “shot

in the dark”, the necessary documents being provided in the course of the trial to

the court (Fodor, 2018, pp. 142-144). As 30 days is the time limit for the

administrative authority to offer an information by request, it appears with

evidence that a longer time is needed by a third party do find out sufficient

information that is necessary in order to decide if he will contest the

administrative acts and on what grounds.

Law 212/2018 finally amended art. 7 in respect with the injured third party.

According to this amendment, the injured third party is entitled to lodge the

prior procedure within 30 days starting from the day he took notice, in any way,

about the content of the administrative act. An important change can be observed

in the text. The starting point for the running of the time limit to lodge the prior

procedure does not depend on the moment the third party takes notice about the

existence of the act, but on the moment the third party takes notice about the

content of the act. As shown before, this can rise a problem in the case of the

building permits, or any other permits that are based on a technical

documentation that is integrated in the permit. “The content” of the act in these

situations is given by the documentation approved by the authorisation and not

the text of the authorization. The importance of knowing the content of the

technical documentation was emphasized by the opinion of the Court of Appeal

Cluj in the request for clarification of a legal matter addressed to the High Court

7 Cluj Court of Appeal, Chamber of Financial and Administrative Contentious, civil decision

no. 347/2010, https://legeaz.net/spete-contencios-jurindex/autoritati-publice-locale-347-2010-xnr,

accessed 12.01.2019.

150 ELENA MIHAELA FODOR

of Cassation and Justice in accordance with art. 519 of the Civil procedure code8.

All these considered, the solution of the legislator chose the shorter time limit,

the one of 30 days, but tied it to the moment the third party not only is aware of

the existence of the act, but knows it’s content, providing a better possibility of

preparing a defence, without which the right of access to court would not be

effective.

The extraordinary appeal

One of the most important amendments of Law 554/2004 introduced by Law

262/2007 changed the content of art. 21, dedicating it to the extraordinary

appeals. At the time, the Civil procedure code9 provided two types of

extraordinary appeal: the review of a decision (revizuirea) and the contestation for

annulment of a decision (contestaţia în anulare). Both extraordinary appeals were

known as “retraction appeals”, as they were in the competence of the same courts

that delivered the contested judgements (the same courts, not the same panel of

judges). According to para. 1 of art. 21 of Law 554/2004 in the form amended by

Law 272/2006, in the contentious administrative procedure all the types of

appeal provided by the Civil procedure code were permitted. Furthermore,

according to para 2. of the same art. 21, an extra reason for the review of a

decision was defined in contentious administrative procedure: a breach of the

principle regarding the priority of European law against national law. Para 2., in

its second part, set some procedural rules regarding the time limit and conditions

for lodging a request for review in the case of the extra reason: “the request for

review could be lodged within 15 days of the decision has been served, which, by

derogation from art. 17 para. 3 of the Civil procedure code, will be done at the

reasoned request of the interested party within 15 days of the judgement being

delivered. The third part of art. 21 para 2. imposed to the courts to give a solution

within 60 days of the lodging of the review request. Decision 1609/2010 of the

Constitutional Court10 found that the dispositions of art. 21 para 2. second part to

be unconstitutional because the text was confuse regarding the time limits and

the competence of courts, breaching the right to a fair trial. In the same decision,

the court maintained as in accordance with the constitution the first part and the

8 High Court of Cassation and Justice, decision no. 74/2018 regarding the clarification of a

legal matter, http://www.monitoruljuridic.ro/act/decizia-nr-74-din-29-octombrie-2018-

referitoare-la-pronun-area-hot-r-rii-prealabile-pentru-dezlegarea-unei-chestiuni-de-drept-emitent-

209703.html, accessed 12.01.2019.

9 Published in the Official Gazette no. 200 from 11 September 1865, republished for the fourth

time in the Official Gazette of Romania, Part I, no. 177 from 26 July 1993 and brought to date in the

Brochure from 15 August 2002.

10 Pblished in the Official Gazette of Romania, Part. I, no. 70 from 27 January 2011.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 151

third part of the art. 21 para. 2. The Constitutional Court underlined the benefits

of the first part, ensuring the priority of the European legislation. It was noted in

the doctrine that this extra reason can only be used if during the lawsuit there

was no discussion about the incidence of a European legal norm. Otherwise, in

the absence of totally new arguments, the appeal would be one in reformation,

not in retraction as a review of the case should be (Ungur, 2016, pp. 138-139) and,

at the same time will infringe the principle of security of legal relationships.

Giving an incorrect interpretation to the Decision no. 1609/2010 of the

Constitutional Court, Parliament adopted Law no. 299/201111 which abrogated

entirely para. 2 of art. 21. In the exposé of the law it was shown the necessity of

putting art. 21 of the Law 554/2004 in accordance with Decision no. 1609/2010 of

the Constitutional Court as it was requested by art. 147 para. 1 of the

Constitution. Following Law no. 299/2011, Law 76/201212 for the enforcement of

the Law 134/201013 regarding the Civil procedure law repealed the para 1 of the

art. 21 of the Law 554/2004. It would appear that the whole art. 21 regulating the

extraordinary appeals has disappeared from the Law 554/2004. But, through

Decision no. 1039/2012 of the Constitutional Court14, Law no. 299/2011 was

found to be unconstitutional, as it disagreed with the Decision no. 1609/2010 of

the Constitutional court, was walking away from the dispositions of art. 147 para.

1 of the Constitution and was diverting the obligation of the legislator to put

national legislation in accordance with the European one.

After all this journey, Law 212/2018 reshaped art. 21. Para. 1 of the article

states that an extra reason for a review request against a definitive court decision,

added to the ones presented in the Civil procedure code, is the breach of the

principle of the priority of European legislation against the national one,

established by art. 148 para. 2 corroborated with art. 20 para. 2 from the

Constitution of Romania. Following a long discussion in doctrine and case-law

(Ungur, 2016) about the possibility of reviewing under art. 21 of the Law

554/2004 definitive court decisions in which the substance of the case was not

evoked, Law 212/2018 specified in para. 2 of the new form of art. 21 that

definitive court decisions regarding lawsuits where the substance of the case was

not evoked is also possible. As for the procedure, para. 3 of the new form of art.

21 sets a time limit of one month for lodging the review request, starting the date

the judgement was served to the party and obliges the court to give a solution

with priority and emergency.

11 Published in the Official Gazette of Romania, Part I, no.916 from 22 December 2011.

12 Pblished in the Official Gazette of Romania, Part. I, no. 365 from 30 may 2012.

13 Published in the Official Gazette of Romania, Part I, no. 485 from 15 July 2010 and

republished the second time in the Official Gazette of Romania, Part I, no. 247 from 10 April 2015.

14 Pblished in the Official Gazette of Romania, Part. I, no 61 from 29 January 2013.

152 ELENA MIHAELA FODOR

The time limit of one month from the day the judgement was served to the

party is consistent now with the one imposed by the Civil procedure code in art.

511. The fixed time limit for giving a solution to the review request was replaced

with the obligation to emergency and giving priority in solving the request.

One question remains though: is there possible to use the other

extraordinary retraction appeal, namely the contestation for annulment

(contestaţia în anulare)? The text of art. 21 no longer mentions the possibility of

exercising in contentious administrative all types of appeal regulated by the Civil

procedure code. At the same time, art. 28 of the Law 554/2004 shows that the

dispositions of the law shall be supplemented with the dispositions of the Civil

procedure code, except for the situation where the latter dispositions are not

compatible with the specifics of the power legal relations established between the

public authorities on one side and the persons injured in their legal rights or

legitimate interests on the other side. As, on the one hand, in contentious

administrative procedure the principles of security of legal relationships and of

the emergency of reaching a final decision are very strong, and on the other hand

a former disposition that expressly allowed the exercise of all types of appeal

regulated by the Civil procedure code was abrogated, the question is legitimate.

It is our opinion that, as long as art. 21 allows again the exercise of the review

request, there is no reason to consider that the other type of retraction appeal,

namely the contestation for annulling a definitive decision (contestaţia în anulare),

could not be exercised.

4. AMENDMENTS REGARDING THE PROCEDURE RULES

Reasoning of the request in prior procedure

As we presented before, in the case of a harmful administrative act, before

the injured person shall apply to the issuing authority, or its superior, to revoke

the act within 30 days from the date when the act was notified to him. Such a

procedure does not limit the access to justice, but offers the possibility of a fast

and free of charge procedure for obtaining one’s legal right, as was found by the

Constitutional Court in Decision no. 1/199415 and Decision no. 1224/201116.

If the issuing authority or its superior refuses to grant the request, the

injured person may address the court with a request for the annulment of the

administrative act. This possibility is described by art. 8 para. 1 of Law 554/2004,

regarding the object of the judiciary action in contentious administrative. The law

did not say anything about the extent of the reasoning of the request addressed

15 Published in the Official Gazette of Romania, Part I, no. 69 from 16 March 1994.

16 Published in the Official Gazette of Romania, Part I, no. 796 from 10 November 2011.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 153

in the prior procedure, nor about the fit between the reasons invoked in the prior

procedure request with the ones mentioned in the action in court. The case-law

reflected different views. In a decision of the Court of Appeal Cluj the court

found that the law does not impose any requirements for the reasoning of a

request in prior procedure, so, the simple demand for annulling the harmful act

was enough17.

Law 212/2018 added to the initial form of art. 8 para 1 a second part,

stipulating that the reasons invoked in the request addressed to court for the

annulment of the administrative act are not limited to the ones invoked in the

request during the prior procedure. One could argue that it is not fair against the

administrative authority, as it was not confronted during the administrative

procedure with all the arguments of the injured party that could perhaps lead to

the admission of the administrative request. On the other hand, it is possible that

the injured person will gather new information, sometimes even from the

administrative authority after lodging the request in prior procedure. This may

be possible due to the short time, of 30 days, from the date the act was served to

the beneficiary or the date the third party took notice of the content of the

harmful act, during which he has to react and lodge the request in prior

procedure. As a final argument, the administrative authority should be able to

find itself the reasons of illegality, once the injured person drew its attention to

the fact that the act may be illegal.

The prior procedure in the case of administrative act that cannot be

revoked due to the fact it entered the civil circuit and produced legal effects

The exceptions from the compulsion to perform the prior procedure were

presented in para. 5 of art. 7. In the original form of the Law 554/2004 the Prefect,

the Ombudsman, the Public Ministry, the National Agency of Public Servants as

well as the persons injured by G.O. or certain dispositions from G.O. found to be

unconstitutional were exempted from the compulsion to perform the prior

procedure. Also, in the case of the plea of illegality, the prior procedure vas not

necessary. Law 262/2007 introduced two new exemptions: the case of an unjust

refusal of the administration to solve a request and the case when the

administration was “silent”, giving no answer during the legal duration for

solving the request.

From the dispositions of art. 6 of the Law 55/2004 derived the conclusion

that the prior procedure is not necessary when contesting and administrative

jurisdictional act. The conclusion was logic, as, according to doctrine the

17 Cluj Court of Appeal, Chamber of commercial law and administrative and fiscal

contentious, civil decision no. 986/2014, https://www.curteadeapelcluj.ro/Jurisprudenta/

sectia%20comerciala/Comercial%20trim%201 %202014.pdf, accessed 13.01.2019.

154 ELENA MIHAELA FODOR

administrative authority had no right to withdraw an administrative

jurisdictional act it has issued.

Law 212/2018 added a new exemption situation: the case of the

administrative act that entered the civil circuit producing legal effects. This

situation was considered by the doctrine one in which the administrative act

could no longer be revoked by the issuing administrative authority (Petrescu,

2004, p. 327). The principle was legally recognized by the Law 554/2004 where,

in art. 1 para 6 it was shown that in case the public authority cannot revoke an

illegal act, because it entered the civil circuit and produced legal effects, it can

lodge a request to the contentious administrative court asking for the annulment

of the act, within a year from the date the administrative act has been issued.

The amendment introduced by the Law 212/2018 in para. 5 of art. 6 does not

specify if it refers to the situation where the administrative authority is

addressing to court pursuant to art. 1 para 6, or it refers to any situation where

the injured person is contesting an administrative act which has entered the civil

circuit and produced legal effects. The answer should be that the legislator

considered the latter situation. That would seem logic, as there is no logic of

thinking the public authority could address to itself a request in prior procedure.

So, the first situation was certainly not in the mind of the legislator. But, if this

would be true, another question arises: why are not exempted from the

compulsion of performing the prior procedure all the situations when the

administrative act cannot be revoked, such as the acts that gave birth to legal

rights with a stability guaranteed by the impossibility of revocation of the basic

act or the administrative acts containing dispositions that have been entirely

executed (Petrescu, 2004, pp. 327-330)?

The forced intervener

One of the amendments of the Law 554/2004 introduced by the Law

262/2007 was art. 161 stipulating that the court can introduce in the lawsuit the

social organisms that have an interest, at the request of any of the parties, or it

can call into question on its own motion the need of introducing them, as well as

other legal entities. Situations where the court sought necessary to introduce

other legal entities in the lawsuit were for example the introduction of the

authority whose name was incorrect mentioned by the plaintiff, of the

beneficiary of the act in the case the administrative act was contested by a third

party, of the legal subject who started the procedure finalized with the issuing of

the contested act, of the person that will be affected by the annulment of the

contested act (such as the public servant that occupied a function which became

vacant due to the issuing of the contested act and was in danger to lose his job if

the act was annulled). At the time the Civil procedure code adopted in 1865, with

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 155

further amendments, was in force, the courts interpreted the dispositions of art.

161 in the sense that if neither party agreed to request the introduction in the

lawsuit of the law subject suggested by the court, the court had the power to

introduce them on its own motion, in order to create the correct frame of the

proceedings (Bogasiu, 2015).

The new Civil procedure code (Law 134/2010) created, in art. 78 para. 2 the

institution of the forced intervener, where the court could rise the question of the

necessity for a legal entity to be introduced in the lawsuit. If neither part of the

lawsuit submitted a request of the introduction of the suggested legal entity, the

court will dismiss the complaint. The person who entered the lawsuit in this way,

would take the procedure as it was at the moment of his entry and is entitled to

defend his rights in every way. Neither part can pretend anything from this

person, as he has not the position of a defendant. But, the person will have to

obey the court decision, as he is party in the lawsuit.

If the court finds that in the trial should have been introduced a person

having the position of defendant, it will give the plaintiff the possibility to do this

until the first day in court. After this moment, the claim addressed to court can

no longer be modified, unless all the parties agree to this expressly, according to

art. 204 of the Law 134/2010 (the Civil Procedure code). In the case a forced

intervener is introduced, he will take the procedure from the moment he entered

the trial.

In this context, it has been shown that, as the dispositions of Law 554/2004

are to be completed with the ones of the Civil procedure code, it was no longer

possible for the court to introduce in the lawsuit a legal subject that would be

interested in the outcome of the trial. The court will only rise the question and in

case neither party will follow the suggestion of the court, it will dismiss the

claim. Law 212/2018 consecrated this thinking and amended art. 161 of the Law

554/2004 in this respect, introducing the same sanction for the refuse of the

parties to extend the procedure frame as suggested by the court: the dismissal of

the complaint.

The appeal procedure

It is to be noticed that in the case of administrative and fiscal contentious

disputes, no appeal is permitted by the Law 554/2004 against the order of the

first instance court. The contestation possibilities are reduced to the

extraordinary appeals. The second appeal (recursul) is an extraordinary appeal

belonging to the group of reformation remedies and limited to issues concerning

the legality of the contested court order. The review and the contestation for

annulment of the court order are both extraordinary appeals belonging to the

retraction remedies, which can be used in very limited situations.

156 ELENA MIHAELA FODOR

According to the rules of substantive jurisdiction, the second appeals

(recursurile) against the court orders issued in the first instance trials by the

chambers of administrative and fiscal contentious of the county courts are within

the competence of the courts of appeal and the second appeals (recursurile) against

the court orders issued in the first instance trials by the chambers of administrative

and fiscal contentious of the courts of appeal are within the competence of the

High Court of Cassation and Justice. Considering the dispositions of the Civil

procedure code, this situation introduced different procedures for the two

situations. Art. 493 of the Civil procedure code describes the filtering procedure in

the case of second appeals brought to the High Court of Cassation and justice.

According to this procedure, a second appeal can be dismissed as manifestly ill-

founded without an oral public hearing. Such a procedure is not applicable for the

second appeals referred to the courts of appeal.

Two problems were found regarding this situation. The first one regards the

existence of a difference in procedure for second appeals promoted in the same

area of law. The second one regards the fact that the filtering procedure may lead

to a final solution in a procedure that is not public nor oral. In case of second

appeals lodged against a court order solving an appeal, the procedure may be

justified, as, after two jurisdictions, the reasonable time for finalizing the case

allows the possibility of ending sooner the case if the second appeal is manifestly

ill-founded.

In the contentious administrative procedure, the injured person is defending

his legal right or interest against the power of the administration and if the first

instance court is a court of appeal it means that the legal right is harmed by

administrative act regarding taxes, contributions, customs duties and accessories

of the previous of a value over 3.000.000 RON, or by an administrative act issued

by a central authority. Being in the situation of defending themselves, the ones

injured by administrative acts should benefit from broad possibilities of

protecting their legal rights and legitimate interests. Instead, the Romanian

legislation narrows the possibility of defence to a minimum: no appeal where the

factual and legal problems could be re-analysed, the single remedy against the

court order of the first instance court being limited to the possibility of discussing

legal matters. In this situation, we welcome the amendment introduced by the

Law 212/2018 to the art. 20 para. 2 according to which the dispositions of the art.

493 of the Civil procedure code do not apply to the second appeal in contentious

administrative.

5. RULES REGARDING THE ADMINISTRATIVE CONTRACTS

Jurisdiction

As we have shown before, Law 554/2004 in its original form, considered that

are taught administrative contracts the contracts concluded by the public

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 157

authorities having as object the enhancing of public property value, the carrying

out of public works, public service delivery and public procurement and that

Law 212/2018 modified the content of art. 2, mentioning in para. 1 letter c1) that

other administrative contracts may be regulated through special laws. The

conclusion was that this expression of the law implies that any contract defined

by a special law as being an administrative contract is considered a taught

administrative act and will be subjected to the control of the administrative

courts, with the exception of those for which the special laws establishes the

competence of control in favour of other courts.

Other amendments introduced by Law 212/2018 regarding administrative

contracts follow a tumultuous legal path on the subject which has to be

presented, for a good understanding of the latest amendments. After 1989, the

first regulation on public procurement was G.E.O. no.60/200118 which defined

the contract as an administrative contract and gave all disputes regarding these

contracts in the jurisdiction of the contentious administrative courts. Later on,

Law 554/2004 entered into force, defining all public procurement types of

contract (for works, services and goods) as administrative contracts and again

establishing the jurisdiction for disputes regarding such contracts in favour of the

contentious administrative courts. In 2006, as Romania was preparing to join the

European Union, new legislation was adopted in the field of public procurement,

enhancing the transparency in the conclusion of contracts. The procurement of

public goods and the concession of public works and public services were

regulated by G.E.O. no. 34/200619. The Ordinance contained a lot of rules for

concluding the contract, but no rules for the performing of the contract or the

jurisdiction for disputes on the subject of performing the contract. In respect to

the procurement procedure, the parties could solve their disputes in front of the

National Council for Solving the Complaints (Consiliul Naţional de Soluţionare a

Contestaţiilor), an administrative body with jurisdictional activity, and further in

front of the chambers of contentious administrative of the courts of appeal in the

judiciary system. Our opinion, at the time, was that these were administrative

contracts, as stipulated by art. 2 para 1 letter c) of the Law 554/2004 and

according to the jurisdiction established by law; we also sustained the opinion

that all the characters of the public contracts as established by the doctrine

should apply (Fodor, 2008, p. 227). Those characters referred, among other, to the

fact that the contract is always concluded between a public authority and a

private supplier, the nature of the contract was onerous, the parties have to

accept dispositions imposed by the public authority in the public interest (les

clauses exorbitantes), the public authority is entitled to modify or end the contract

18 Published in the Official Gazette of Romania, Part I, no. 241 from 11 May 2001.

19 Published in the Official Gazette of Romania, Part I, no. 418 from 15 May 2006.

158 ELENA MIHAELA FODOR

in a one-sided manner and without the intervention of the court if there is a

question of public interest or the obligation of the private party became too

onerous, the contract is governed by the principle of financial equilibrium

between the parties entitling the private supplier to damages if the contract is

modified or ended without his fault, the rules of public law are governing the

contract (Iorgovan, 2002, p. 115).

However, through G.E.O. no. 76/201020 the Government showed another

opinion, as this legal act amended G.E.O. no. 34/2006 introducing para. 11 to the

art. 286, stating that the disputes concerning the performing, nullity, annulment,

cancelation or one-side termination of the public procurement contracts are in the

jurisdictions of the commercial chambers of the county courts where the

corporate seat of the public authority lies. Some authors concluded that the

parties, after concluding an administrative contract with all the rigor specific to

such contracts, will act as equal parties in a commercial contract, the disputes in

this stage being in within the jurisdiction of the commercial courts and not

subjected to the rules of public law (Tabacu & Singh, 2011, p. 176). We did not

agree. What was to be understood, that a contract may be governed at the same

time both by the rules of public and private law? A mixed jurisdiction divided

between the stages of the contract could only lead to confusion in the

interpretation of the clauses of the contract (Fodor & Fodor, 2013, p. 84). G.E.O.

no. 77/201221 ended the confusion, defining al public procurement contracts

regulated by G.E.O. no. 34/2006 as administrative contracts (amendment of art. 3

para. 1 letter f) of G.E.O. no. 34/2006). Art. 286 was also amended, all disputes

concerning the performing, nullity, annulment, cancelation or one-sided

termination of the public procurement contracts were established within the

jurisdiction of the fiscal and administrative contentious chambers of the county

courts where the corporate seat of the public authority lies.

But, normality had a short life, as G.E.O. no. 34/2006 was replaced by Law

98/201622 regulating public procurement. The dispositions regarding disputes

about such contracts formed the object of a distinct normative act, Law

101/201623. According to art. 53 para. 1 of this law disputes derived from the

procedure for concluding the contract, the annulment or nullity of the contracts

are, in the first instance, within the jurisdiction of the fiscal and administrative

contentious chambers of the county courts where the corporate seat of the public

authority lies. Disputes concerning the performing of the contracts are, in the first

instance, within the jurisdiction of the civil courts where the corporate seat of the

public authority lies. So, the legislator brought us back to the confusion

20 Published in the Official Gazette of Romania, Part I, no. 453 from 02 July 2010.

21 Published in the Official Gazette of Romania, Part I, no. 827 from 10 December 2012.

22 Published in the Official Gazette of Romania, Part I, no. 390 from 23 May 2016.

23 Published in the Official Gazette of Romania, Part I, no. 393 from 23 May 2016.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 159

generated by a dual nature of the contract of public procurement, but with a little

bit of order: disputes connected to the conclusion of the contracts, namely the

conclusion, nullity and annulment (as nullity is a sanction for not observing the

legal rules when concluding a contract) were within the jurisdiction of the

contentious administrative courts, while the disputes connecting with the

performing of the contracts were within the jurisdiction of civil courts.

But things can get complicated this way. One example was generated by a

court action demanding the annulment of the document finding the fulfilment of

the obligations of the contract, issued by the contracting public authority. This is

a legal act connected with the performing of the contract, but the object of the

legal action was a request for annulment. The negative jurisdiction conflict (as

bot the civil chamber and the fiscal and administrative contentious chamber of

the county court declared themselves not competent to judge the legal action)

was solved by the High Court of Cassation and Justice. The supreme court

decided in favour of the fiscal and administrative contentious chamber, but on

the grounds of G.D. no. 925/2006, containing the methodology regarding the

awarding of contracts, which stipulated that the contracting authority is obliged

to issue documents regarding the fulfilment of the obligations of the supplier,

documents which can be contested to the contentious administrative courts in

accordance with the procedure of Law 554/200424. The court did not consider

that the dispositions from a G.D. cannot be contrary to the dispositions of a low,

especially if the G.D. is older than the law and, in our opinion gave priority to the

contentious administrative chamber considering the nature of the contract, even

if the dispute was in connection with the performing of the contract.

We maintain all the critics to the solution of a divided jurisdiction.

Furthermore, Law 98/2016 does not provide any dispositions that may reflect the

public nature of the contract, the uneven balance between the power of the

contracting public authority and the power of the supplier, as it emerges from the

rules dominating the administrative contract established by the doctrine.

Law 212/2018 deepened the confusion. Trying to put the dispositions of Law

554/2004 in accordance with the ones of law 101/2016, it amended art. 8 para 2

of the Law 554/2004. The new dispositions show that the contentious

administrative court is competent to decide in disputes regarding the phases

preliminary to the conclusion of an administrative contract, as well as any

disputes related to conclusion of the administrative contract, including the ones

regarding the annulment of the contract; disputes arising from the performing of

the administrative contracts are within the jurisdiction of the civil courts. But

para. 2 of art. 8 is followed by para. 3 of art. 8 which remained unchanged and

24 High Court of Cassation and Justice, Chamber of fiscal and administrative contentious,

decision no. 408/2018, idrept.ro/DocumentView.aspx?DocumentId=17442769, accessed 16.01.2019.

160 ELENA MIHAELA FODOR

stipulates that when deciding in the disputes described by para. 2 the courts will

observe the rule saying that the contractual freedom is subordinated to the

principle of the priority of the public interest. So, if the courts have to observe the

priority of the public interest against the contractual freedom, what is the point of

establishing the jurisdiction in favour of the civil courts? Besides that, what does

this priority mean, as long as no reference is made to the principles that govern

an administrative contract in any national law? We have mentioned, in the past,

foreign legislation where, articles from a civil law presented with extreme

precision and clarity the possibilities of the contracting public authority during

the performing of the contract in keeping with the principle of the priority of

public interest, suggesting that all things would be simple if similar rules will be

clearly stated in our legislation for the guidance of the contentious administrative

or civil courts (Fodor, 2012, pp. 34-36). Such rules would be also in accordance

with European documents regarding other administrative contracts25.

The prior procedure

Art. 6 of the original form of Law 554/2004 was consistent with the Civil

procedure code (1865) in force at the time of the enforcement of the law. The code

demanded that in the case of disputes with a commercial nature, a prior

procedure had to be performed, called “the conciliation procedure” (art. 7201).

The Code described the procedure in detail. Para. 6 of art. 6 of the Law 554/2004

established that in the case of administrative contracts, the prior procedure has

the significance of the conciliation procedure demanded for commercial disputes.

Law 134/2010 regarding the Civil procedure code replaced the Code of civil

procedure (1865). The new Civil procedure code abandoned the notion of

commercial contract as well as the ned for the conciliation procedure. In this

context, the question whether any prior procedure was needed any more in the

case of disputes regarding administrative contracts in front of contentious

administrative courts arose. We considered, along with other authors, that the

need for prior procedure remains in case of the administrative contracts, but the

rules established before by art. 7201 of the former Civil procedure code (1865) no

longer apply (Fodor, 2017, p. 372). This opinion was sustained later by a decision

of the High Court of Cassation and Justice which found that the great majority of

the contentious administrative courts adopted this solution.

Law 212/2018 resolved this problem. Art. 7 para. 6 of the Law 554/2004 was

amended, providing now that the prior procedure is compulsory in case of

25 For example the Green Paper on public-private partnership and Community law on public

contracts and concessions, Brussels, 30.4.2004, COM (2004) 327 final, eur-lex.europa.eu/legal-

content/hu/TXT/?uri=CELEX:52004DC0327, accessed 15.01.2019.

Amendments to the Law No. 554/2004 introduced by Law No. 212/2018 161

administrative contracts, within 6 months starting the date the contract was

concluded, in disputes related to the conclusion of the contract, or the date the

reason for annulment was known, but no longer than one year from the date the

contract was concluded.

6. CONCLUSIONS

After several decisions of the Constitutional Court of Romania regarding

texts from the Law 554/2004 and the enforcement of a new Civil procedure code,

as well as the enforcement of new legislation regarding public procurement

contracts, it was clear that changes had to be made in the law. Law 212/2018

tried to bring the text of Law 554/2004 in accordance both with the ideas of the

Constitutional Court and the dispositions of the new major laws to which the

Law 554/2004 was connected: Law 134/2010 (Civil procedure code) and Law

101/2016. Some of the solutions were good, such as the harmonization of art. 161

of the Law 554/2004 with art. 78 para 2. of the Civil procedure code regarding

the forced intervener. Dispositions regarding the administrative contracts as

taught administrative acts, with the consequence of consecrating the competence

of contentious administrative courts for solving disputes regarding all

administrative contracts are also a progress. A progress is also the connection of

the starting point of the time limit for performing the prior procedure, in the case

of the third party injured by an administrative individual act addressed to

another, with the moment he took notice in any way about the content of the act.

The only problem that remains is the possibility of the third party to gain access

to the content of administrative act addressed to another, as the administrative

authorities are very reticent, even if no personal data has to be revealed.

Improvements were also made concerning the appeal procedures, as the filtering

of the second appeals logged to the High Court of Cassation and Justice was

removed in case of contentious administrative disputes and the dispositions

regarding the review were clarified.

The regulation of the administrative contracts remained a major problem.

Law 212/2018 tried to harmonise Law 554/2004 with the special laws regarding

the public procurement. But the problem lies with the latter laws. Maintaining

and generalising the dual nature of administrative contracts – administrative

contracts in respect with the procedure of conclusion and annulment, but civil

contracts in respect with the performing of the contracts results in an

inacceptable mix between public and private law and will create confusion in

respect to the characteristics of an administrative contract.

162 ELENA MIHAELA FODOR

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