Command Acts Of Military Nature. Considerations On The Actuality Of The Regulation

AuthorDan Constantin Mâta
Pages36-45
COMMAND ACTS OF MILITARY NATURE.
CONSIDERATIONS ON THE ACTUALITY OF THE REGULATION
Lecturer Dan Constantin MÂȚĂ1
Abstract
Command acts of military nature are traditionally regulated in Romanian law as ab solute excep tions to the
legality control of admini strative litigation courts. The notion is mentioned in the Constitution of 1923, and it was later
seen in the laws on administrative litigation in 1925 and in 1990. Currently, the Romanian Constitution of 1991, as
revised in 2003, stipu lates the command acts of military nature as exceptions to the judicial control of the
administrative acts of public authorities, by way of administrative litigation. The administrative litigation law no.
554/2004 duly reg ulates this category of legal acts, including through the establishment of a d efinition. In spite of this
complex, constitutional and legal regulation, the command acts of military nature have benefited from minor attention
from the doctrine. Right from the beginning of the regulation, the extrajudicial chara cter of the notion was emphasized,
based on the n eed to ensure the discipline of the military and the con ditions specific to the military operations. Besides
the treaties and the academic law university courses, the interest of the d octrine in the legal regime is limited, the main
cause being considered the lack of relevance in the practice of admin istrative litigation courts. Legal controversie s
regarding the legality of the Decree of the President of Romania no. 1331/28.12.2018 have brought back the interest in
command acts of military nature, and therefore it is necessary to re-value this notion under the current demands of
doctrine and practice . The article analyses, from a critical perspective, the controversial issues in relation to the main
doctrinal approaches and the jurisprudence trends in this field.
Keywords: administrative litigation, legality control, command act of military nature , administrative law.
JEL Classification: K23
1. Introduction
The contentious administrative represents the totality of proceedings between the public
authorities and the individuals considering themselves injured in their rights or legal interests, such
proceedings being settled before the administrative courts. Such courts are not competent to settle
all proceedings involving a public authority, but only those regarding administrative acts, typical or
assimilated. The article dedicated to administrative courts, from the Constitution of Romania of
1991, amended in 2003, guarantees the judicial control of administrative acts of public authorities,
by filing administrative proceedings, except those regarding the relationships with the Parliament,
as well as command acts of military nature” [art.126 paragraph (6)].
In agreement with the constitutional text, art. 5 paragraph (1) from the Administrative
Proceedings Law no. 554/20042, as from time to time amended, sets forth that legal remedy cannot
be sought by administrative procedures against: a) administrative acts of public authorities
regarding their relationship with the Parliament; b) command acts of military nature”. Art. 5
paragraph (2) sets forth that legal remedy cannot be sought by administrative proceedings against
administrative acts for the amendment or annulment of which, by organic law, another legal
proceeding is provided for.
In the specialty doctrine, the exceptions to the administrative proceedings upon
administrative acts of public authorities are considered motions to dismiss. Traditionally, such
motions to dismiss have been divided in two categories: a) motions to dismiss deduced from the
nature of the act and b) motions to dismiss determined by the existence of a parallel appeal3.
1 Dan Constantin Mâță - Faculty of Law, ”Alexandru Ioan Cuza” University of Iasi, Romania, danmata@uaic.ro.
2 Published in the “Official Journal of Romania”, Part I, no. 1154 of December 7th, 2004.
3 Constantin C. Rarincescu, Contenciosul admin istrativ român [Romanian administrative contentious], 2nd ed., “Universala” Alcalay
Publishing House, 1936, p. 285; Antonie Iorgovan, Tratat de drept a dministrativ [Treatise on Administrative Law], vol. II, Forme de
realizare a administraţiei publice. Domeniul public și serviciul public. Răspunderea în dreptul administrativ. Contenciosul
administrativ [Forms of accomplishing public administration. Public domain and public service. Liability in administrative law.
Administrative proceedings], All Beck Publishing House, Bucharest, 2005, p. 602.

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