Notes on the Review of Judgments in Administrative Litigation Courts
| Author | Ion Deleanu - Gheorghe Buta |
| Position | Associate Professor - Faculty of Law, 'Babes-Bolyai' University, Cluj-Napoca. - Scientific Researcher, 1st degree - Legal Research Institute of the Romanian Academy. |
| Pages | 1-19 |
NOTES ON THE REVIEW OF JUDGMENTS
IN ADMINISTRATIVE LITIGATION COURTS
*
Ion Deleanu, Ph.D.
*∗)
Gheorghe Buta, Ph.D.
***)
Abstract
Review of judgments in civil proceedings is, together with the appeal for
annulment, the chance for a final procedural possibility for a “remedy” legal
solution so that, ultimately, a binding court decision is consistent with normative
propositions incident to that legal dispute. Often, this extraordinary remedy is not,
as commonly, a “reverential” one anymore, but is “aggressive”, based upon the
urgent requirement of retrial as a consequence of “passing final and binding
judgments in violation of the principle of supremacy of EU law, governed by
Article 148 par. (2), in conjunction with Article 20 par. (2) of the Romanian
Constitution, republished” as stated in Article 21 par. (2) of the Administrative
Litigation Law no. 554/2004. Review mechanism, as put into operation, focuses
on controversial or debatable issues, some unpublished. In this study, the authors
note to identify and comment on some of the aforementioned.
Keywords: effective internal appeal; ECHR ruling; review
1. Essentially, as governed by existing provisions of Article 322 et seq. under
the Code of Civil Procedure, review is characterized by the following determining
parts or constant and unavoidable attributes: it is an extraordinary remedy, feature
substantially deriving from the fact that its object consists in final decisions on appeal
or non-appealed decisions or decisions on appeal on account of judging on the merits,
on the one hand, and on the other it can be referred to only in cases restrictedly
provided by law; it is a retraction means of appeal, “reverential” in the sense that –
save for a single case
1) –
petition for review shall be referred to the court which settled
the case, requiring reconsideration of the judgment passed; it is a common remedy,
being available to those who were themselves parties in the lawsuit or have been
*
Article translated from the Romanian lang uage. It was published in “Dreptul” Magazine No.
4/2011, pp. 91-109.
*∗
)
Associate Professor – Faculty of Law, “Babeş-Bolyai” University, Cluj-Napo ca.
***
)
Scientific Researcher, 1
st
degree – Legal Research Institute of the Romanian Academy.
1)
In consideration of ground set forth under Article 322 Section 7 Code of Civil Procedure, i.e.
for the existence of adverse final decision, passed by courts of the same or different resorts, in one
and the same cause, between the same persons of the same quality, petition is referred to the higher
level court compared to the one that rendered the first decision, and if one of the Courts of Appeal is
the High Court of Cassation and Justice, inevitably, petition for review shall be heard by this court,
so that the overall classification of review as a retraction means of appeal involves this note.
2
represented in the lawsuit; virtually, it is a non-suspensive remedy of execution,
feature deriving from the extraordinary nature of review; review is justified by the
fact that, as a rule
2)
, involuntarily
3)
, the court made an error in relation to the facts set
down in the appealed decision, or in relation to the existing case on the judgment’s
passing date or to circumstances that have arisen subsequent to the ruling
4)
.
2. Review regulation in light of provisions set forth under Article 503 et seq.
under the new Code of Civil Procedure, enacted by Law no. 134/2010, shall not
deviate fundamentally from the current legislation. However, there may be seized,
prima facie, some differences: in connection with the review object, it is no longer
stated that it consists in “final decisions on appeal or non-appealed decisions”, as
well as “decisions passed by an appellate court on judging on the merits”, but it is
only mentioned that it consist in “decisions passed on the merits or raised on the
merits”
5)
; However, for some reasons, as set forth under par. (2) of Article 503
2)
Except, for instance, cases under Article 322 Section 4 Code of Civil Pr ocedure.
3)
We judge that when a “mistake” has been “voluntarily” committed by the court, which ensues
from the very effort of the court to ground it, review is not permissible; the parties must pursue the
appeal. In this respect, some approaches of an older ruling are indicative: “Errors of ultra petita or
extra petita give way to the extraordinary means of appeal of the review only if they were committed
unintentionally, because only in this way review can be justified, which stands for a means of appeal
addressed by the party to the same court, inviting it to fix the error; should the alleged ultra petita or
extra petita error committed not have been unintentional, but, furthermore, it is grounded, then the
party can exclusively appeal to higher courts. But, should this distinction be not accepted, however, it
is indisputable that the application for review must be rejected, appeal being the only one applicable
in this case, when, under the alleged irregularity, the court has committed a breach of law”. (Olt
Court, Civil Section, Decision no. 233/1940, as cited Gr. C. Zotta, Codul de procedură civilă adnotat
(Annotated Code of Civil Procedure), Bucharest, 1941, no. 11, p. 231).
4)
Findings are undoubtedly real compared with most grounds for review, but as regard s some
of these grounds, they raise errors committed by an incorrect assess ment of the existing file case
on the day the relevant decision was passed. For example, should the enacting terms encompass
contrary provisions, should the court ruled on some issues not applied for or failed to rule on
something applied for or was given more than applied for. Under these terms, taking over
considerations set forth under a decision of the Constitutional Court is at least debatab le. [Decision
no. 353/2006 (“Official Gazette of Romania”, Part I, no. 462 of Ma y 29
th
, 2006).]
5)
It appears that the legal wording does not excel in clarity and accessibility, precisely in a
highly sensitive field, as is the practice of an extraordinary remedy. On our part, we judge that
reconsidering the former re-wording, compared with renewed meaning given to the term “judging on
the merits” and the term “final decision” can suggest that there may be subject to review any decision
passed on the merits or raised on the merits, even if these are not “final” yet; but there may be also
subject to review “final” decisions passed on the merits by law courts and courts of appeal, under
provisions set forth under Article 492 par. (1) Code of Civil Procedure. [But this is not the case for
filter panel decisions passed under the terms of Article 487 par. (6) and (8) Code of Civil Procedure,
or for decisions of the High Court of Cassation and Justice panel, as provided by Article 487 par. (7)
Code of Civil Procedure, since the resolution of the appeal does not concern "the merits" of the case,
on all accounts, de facto and de jure, but “the lawfulness of the decision” exclusively. Conversely,
following the quashing of detention, tribunals and courts of appeals “re-judge the case on the merits”,
3
Code of Civil Procedure
6)
, there are subject to review also decisions not raised on
the merits
7)
; ignoring some wording issues, we hereby note that the 9 grounds for
review, as under current regulation, turned to 11 grounds, removing the first ground
under current Article 322 Code of Civil Procedure
8)
, but legitimately conducting to
severance of grounds 4 and 5 of the same Article in two separate assumptions, and
adding a new ground, undoubtedly necessary under the new regulations, whereby,
after the decision became final, the Constitutional Court ruled on the objection
raised in that particular cause
9)
, “declaring”
10)
unconstitutional the provisions that
on all accounts, any evidence being admissible under the law.] Two other clarifications are
necessary, however: with reference to Article 453 par. (1) Code of Civil Procedure, review shall not
be exercised as long as the means of appeal is open; although the right of review is still open, by its
reasons and purpose, review can be exercised, it being aimed at solving “the merits” of the case, not
only “the unlawfulness of the decision” on account of express and limited grounds provided by law.
6)
These grounds include: a judge, witness or expert, who took part in the trial, was unappealably
convicted of an offence relating to the cause or if the decision was passed on account of a deed
validated as false during or after the trial, when these circumstances influenced the judgment
rendered in the case; a judge was indefeasibly disciplinary sanctioned for exercising its position in
bad faith or gross negligence, whether those circumstances have influenced judgment passed in the
case; the state rule or other public legal entities, minors and those placed under judicial interdiction or
under guardianship were not defended at all or have been artfully defended by those charged with
their defence; there are adverse final decisions, given by court of the same resort or different resorts
in one and the same case, between the same persons, similarly qualified; the party having been
hampered to appear in court and to notify the court thereof, under a circumstance beyond its control;
the European Court of Human Rights found a violation of fundamental rights or freedoms “due”
(sic!) to a court order, and serious consequences of such violations are still occurring; after the
decision has become final, the Constitutional Court ruled on the objection raised in that case,
declaring unconstitutional the provision that was subject to those objection.
7)
It is a new provision, which is consistent with the opportunit y and need to r eview, and with
conventional imperatives on the right of access to fair justice and the right to an e ffective remedy.
8)
“Should the enacting terms of the decision contain contrary provisions that can not be executed” –
provides the relevant Article. Removing this ground for review, under the new legislation, would fall
within the logic of the provisions of future Article 437 par. (1) Code of Civil Procedure, according to
which, in such a case, the parties may request the court having passed the decision to remove the contrary
provisions, “mandatory procedure” that can not be substituted by right of appeal or remedy, as stated under
Article 439 in the new Code of Civil Procedure. (Admittedly, this Article does not relate to review, but, if
removing contrary provisions is not to be performed by way of appeal or remedy, a fortiori it shall not be
accomplished on account of requesting retraction of decision, either). On the other hand, under the purport
of future Article 701 par. (2) Code of Civil Procedure, execution may be challenged, unless the procedure
provided for in Article 437 Code of Civil Procedure has been exploited.
9)
By enacting Law no. 177/2 010 (“Official Gazette of Romania”, Part I, no. 672 of Octo ber
4
th
, 2010), law under which, practically, there has been advanced enforcement of future provisions
in Article 503 par. (1) Section 11 Code of Civil Procedure and Article 504 par. (3) Code of Civil
Procedure, right of review has already b een instituted for the ground stated, considering that
provisions of Article 29 par. (5) of Law no. 47/1992, relating to the suspension of proceedings
pending the settlement of the plea of unconstitutionality, have been repealed.
10)
The term is clearly inappropriate: the j udge ad quem does not “rule” himself
unconstitutionality of a legal text, but “ascertains” unconstitutionality, which pre-exists to the
ruling of the contentious constitutional court. Article 147 par. (1) of the Constit ution refers
4
were subject to the relevant objection; for some of the grounds for review, the
deadline for the exercise of the petition for review has been reduced [sections 10
and 11 under future Article 505 par. (3) Code of Civil Procedure].
3. Review paradoxes persist under both present and future regulations.
According to its common meaning, the term “review” should signify the
existence of extensive possibilities of application and imply comprehensive
review of appealed decision. But, as the right of remedy and, usually, the right of
appeal, fully devolutive, exist, cases in which errors in court orders could still be
removed, by way of review, can only be restrictive and rigorously determined.
In terms of the institution of review as a whole, it is being portrayed as a
heterogeneous or hybrid institution, paradoxical in at least the following matters:
along with specific elements of retraction, there are also elements specific to
reversal remedies; under legal grounds for review there are pursued sparse
objectives, among which: in special circumstances, granting the right of defence;
removing the negative consequences of errors of law, of crimes or force majeure
events, affecting resolution; removing persistent and “serious consequences” of a
ruling; deadlines for exercising this means of appeal are not only different, but
they also run from different moments; jurisdiction for the petition for review is
sometimes different, and especially a non-specific means of retraction, and should
there be grounds that call for different jurisdictions, extension of competence of
jurisdictions is not applicable; although, usually, this remedy is directed against
decisions passed on the merits or raised on the merits, however, it could be
directed sometimes against decisions lacking this feature; despite the fact that,
fundamentally, this remedy aims at decisions having resolved the merits of the
dispute, some of the grounds underpinning review are intended to remove formal
errors in the appealed decision; ultimately, the consequences of review cover a
wide range, from simple completion of appealed decision up to rendering a
decision diametrically opposed to the one appealed to.
4. Despite its rigorous junctures, reviewing is still inflaming, on account of
novel situations and, in any case, subject to different interpretations.
In our view, assumptions brought forward below “cover” this assertion. It is
proven again that real legal life is much more prolific than imagined legislative
solutions.
correctly to the “ascertainment” of unconstitutionality, not its “ruling”, which would exceed the
“negative legislat ure” role of the Constitutional Court. [However, the legislature ’s ignorance has
been reaffirmed, repeating t he same term both in provisions under Article II, Section 1 of Law no.
177/2010 and in provisions of future Article 503 par. (1) Section 11 Cod e of Civil Procedure].
5
5. Review of judgments in the matters of administrative litigation, under
Article 21 par. (2) of Law no. 554/2004
11)
, carries forth notable features
12)
. Taking
as reference points some of the rulings passed in this area, we hereby lay down
some comments which might be useful, at least as theories for debate.
6. By decision no. 2615/2009 of the High Court of Cassation and Justice, the
Administrative and Financial Litigation Department (unpublished)
13)
, there was
granted the petition for review based on the provisions of Article 21 par. (2) of
11)
For the purposes o f Article 21 par. (2) of Law no. 5 54/2004: “In addition to grounds for
review set forth under the Code of Civil Procedure, there stands also for a ground for review
passing of final and bindi ng decisions in breach of Community law principle of priority, subject to
Article 148 par. (2), in conjunction with Article 20 par. ( 2) of the Romanian Constitution,
republished. The petition for review is lodged within 15 days of service, which shall be performed,
notwithstanding the r ule enshrined in Article 17 par. (3), on strength of duly substantiated request
filed b y the interested party, within 15 days of delivery. The petition for review shall be settled
urgently and particularly within 60 days after its lodging.
12)
A transient theor y for review, o n the same subj ect of administrative litigation, was
provided under Article III of Law no. 262/2007 amending and supplementing Law no. 554/2004
on administrative litigation. [Contradiction emerged between the Constitutional Court and the
High Court of Cassation and Justice on t he constitutionality of these provisions has been subject to
a thorough research, bearing a c onclusive and energetic title: Ş Beligrădeanu, Flagranta
nelegalitate, în raport cu legea fundamentală, a refuzului Înaltei CurŃi de CasaŃie şi JustiŃie de a
aplica o dispoziŃie înscrisă într-o lege în vigoare, sub cuvânt că aceasta „înfrânge dreptul la un
proces echitabil” - deci este neconstituŃională -, deşi Curtea ConstituŃională constatase
constituŃionalitatea acelei prevederi legale (Flagrant illegality, in relation to the fundamental law,
of the refusal o f the High Court of Cassation and Justice to enforce a provision under an effective
law, alleging that it “defeats the right to a fair trial” - therefore it’s unconstitutional – alth ough
the Constitutional Court had already ascertained the constitutionality of the relevant legal
provision, in “Dreptul” (the “Law”) no. 7 / 2010, p. 56 et seq. Indeed, as far as the plea of
unconstitutionality is concerned, provided for in Article 146 Section (d) of the Constitution,
considering that the Constitutional Court is the only authority competent to decide and, also, by
virtue of Article 147 par. (4) of the Fundamental Law, its decisions are binding, willy-nilly,
although some decisions are questionable, they require u nconditionally compliance. Otherwise, the
constitutional control system would collapse, lacking any sense or would have perhaps only a
useless advisory one. From another argumentative perspective, partly questionable, see also: C.
ŞtefăniŃă, Modul de procedare al instanŃelor judecătoreşti confruntate cu o contradicŃie între o
decizie a CurŃii ConstituŃionale şi o decizie pronunŃată de Înalta Curte de CasaŃie şi JustiŃie, în SecŃii
Unite, pentru soluŃionarea unui recurs în interesul legii (Methods o f proceedings of courts faced
with a conflict between a decision passed by the Constitutional Court and a decision passed by the
High Court of Cassation and Justice, in Joint Sections, to resolve an app eal in the interest of the
law) in “Dreptul” (“the Law”) no. 4 / 201 0, p. 119 et seq. In re lation to the reasoning of the latter
opinion, we merely remark that the problem of implementing Article 20 in the Constitution is also
a constitutional issue on which the Constitutional Court decides exclusivel y, not law courts.]
13)
We single out this decision not only because, to our knowledge, this is the first d ecision on
the enforcement o f aforementioned provisions, but also due to the thorough analysis this complex
issue under went and to the excellent overview of the ge neral principles of EU law and,
particularly, of establishing the right of defence. The enacting terms of the decision are based on a
sober argument, broad, subtle and profound, according to the court it e manates from.
6
Law no. 554/2004 on administrative litigation
14)
, as subsequently amended and
supplemented
15)
, considering that legal requirements are met for the introduction
of this extraordinary remedy, since the appealed decision is a final and binding
decision that was raised on the merits
16)
, under the petition for review being
claimed the violation of the principle of supremacy of EU law
17)
, regulated by
Article 148 par. (2), in conjunction with Article 20 par. (2) of the Romanian
Constitution, republished
18)
.
14)
The Constitutional Court held that: “By enshrining in the wording of Law no. 554/2004 on
administrative litigation the right to request review of a decision passed in breach of this principle, the said
constitutional provision was awarded efficiency, instituting a substantive way to ensure performance of
obligations undertaken by the Romanian state under the Accession Treaty to the European Union,
including in terms of the preservation of unity and stability of European regulatory policy”. (Decision no.
1609/2010, published in the Official Gazette of Romania, Part I, no. 70 of January 27
th
, 2010).
15)
With re gard to this regulation, see: A. Iorgovan, L. Vişan, A.S. Ciobanu, D.I. Pasăre,
Legea contenciosului administrativ (Administrative Litigation Law), Editura Universul Juridic
(Law Publishing House), 2 008, p. 338-346, G. Bogasiu, Legea contenciosu lui administrativ,
comentată şi adnotată (Administrative Litigation Law, co mmented and annotated), Editura
Universul Juridic, 2008, p. 3 12-323, E. Albu, Dreptul conte nciosului administrativ (Administrative
Litigation Law), Editura Universul Juridic, 2008, p. 257-258, I. Rîciu, Proc edura contenciosului
administrativ (Administrative Litigation Procedure), Editura Hamangiu (Hamangiu Publishing
House), 2009, p. 383 -38 8; G.V. Bîrsan, B. Georgescu, Legea contenciosului administrative
(Administrative Litigation Law), no. 554/2004, Editura Hamangiu, 2008, p. 168-169.
16)
In the wording of Decision no. 1609/2010 (cited above), the Constitutional Court held,
inter alia, that, unlike the provisions set forth under the Code of Civil Procedure, wording of
Article 21 par. (2) of the Administrative Litigation Law “is not very explicit in terms of any
decisions that can be appealed to the extraor dinary right of review on account of the new grounds
for review described above. Thus, if Article 322 of the Code of Civil Procedure states that there
are subject to review final decisions on appeal or non-appealed decisions or decisions passed by
appellate courts, the first sentence of Article 21 par. (2) of the Administrative Litigation La w no.
554/2004 refers generically to ”final and binding” decisions, without any particularization thereof.
But since, according to Article 28 of Law no. 554/2004, the provisions contained therein
complement the provisions under the Code of Civil Procedure, to the extent that these are not
inconsistent with the particularities of power relations specific to administrative law, the Court
notes that the judge and the interested parties dispose, however, of necessary reference points for
classifying a court order in the category of rulings likely to be subject to review under the
criticised purport, so that it can not retain infringement of right o f free access to justice and
enforcement of legal remedies, enshrined in Article 129 of the Constitutio n”.
17)
In the same decision, the Constitutional Court also held that “the first sentence of Article 21 par.
(2) of the Administrative Litigation Law no. 554/2004 employs a weak wording in terms of legal logic,
stating that the new ground for review stands for “passing final and binding decisions in breach of the
principle of supremacy of EU law.” In a strict grammatical and semantic interpretation, that wording
could mean that qualifying a court order as final and binding would be the consequence of infringement
of the principle of supremacy of EU law. In regulating this new case of review, no doubt that the
legislature had not taken its stand upon such a premise, but the Court holds that, although it is not likely
to conflict with any constitutional purport, the wording of this sentence is improvable.”
18)
On strength of the aforementioned decision no. 1609/2010, in ruling on t he
constitutionality of Article 21 par. (2) of Law no. 554 / 2004, the constitutional litigation court
ascertained, on the one hand, on the basis of new grounds which justify partial reconsideration of
7
Out of the decision recitals, we hereby bring into focus some of the genuine
“contributions” of the court to the crystallization of interference reports between
European (ex-EU) and national regulations, as well as to the rigorous
determination of review hypothesis in question: if the court ruled on strength of a
final decision on the relevant inapplicability of Community rules raised, the same
issue can not be repeated under review, thus converting an extraordinary
“retraction” remedy into a new “reversal” remedy of the binding decision, and,
concurrently, ignoring the security of legal relations validated and on account of a
court order entered in the heritage of res judicata; the idea of complementarity of
conventional and Community (European) standards, and the requirement for both
their compliance and enforcement in taking precedence over national standards;
identification of general principles of EU law, derived also from the case law of
the Court of Justice of the European Union; mentioning essential and immanent
determinations of the right of defence, in any proceedings and all stages thereof;
mentioning the requirement for implementing the principle of “equivalence” in
national legislation in relation to the right of defence, as well as the requirement
for complying with the principle of “effectiveness” and “proportionality”.
The purpose of this review being totally different, we no longer insist on the
decision constituted as a “pretext” that we judge unobjectionable.
7. Hence, for the purposes of Article 21 par. (2) of Law no. 554/2004, there
is another ground for review, which adds up to the ones provided for under the
current and future civil procedure common law.
With subtle arguments, it was argued that this ground for review should
therefore be broadened by analogy to any court orders assimilated to res judicata,
if it has been violated the principle of supremacy of EU law. We deem that the
impetus which supported an option as such – easily understandable and, virtually,
creditable - should be “mitigated”, the merely transgression of provisions shown
in civil matters would not only be intolerable
19)
, but it would neither be advisable,
on account of two substantive and manifest grounds: a) The ground provided by
Article 21 par. (2) of Law no. 554/2004, as laid down, unfortunately and without
ignoring the ingenuity and good intentions of those who “inspired” the legislature
previous decisions i n this matter, that the provisions of the second sentence of par. (2) thereo f are
unconstitutional, but, on the o ther hand, despite some “weak wordings in terms of le gal logic, “not
very explicit” draft, however, since it can lead to appropriate understanding of the first sentence, it
rejected the plea of unconstitutionality of provisions thereo f; furthermore, the Constitutional Court
rejected the plea of unconstitutionality of the third sentence of the same paragraph and article,
these provisions conveying the principle of celerity, “specific feature of all stages of trial
conducted under the procedural rules established by Law n o. 554/2004”. We shall revert to some
of the recitals of this deci sion below, also in comparison with some of the findin gs of the Supreme
Court in the implementation of the aforementioned provisions.
19)
W e can not ignore the fact that special regulations, by definition, are not susce ptible of
extrapolation by analogy.
8
is - in part - a legislative error. It doesn’t stand for a genuine ground for
“retraction” within the process of review, but a “reversal” one, inadmissible under
the principle of res judicata and, consequently, under the principle of certainty
and constancy derived from irrevocable judicial settlement of a legal dispute; b)
the litigious ground ignores the mechanism of preliminary question or prejudicial
matter referred to the Court of Justice of the European Union - as provided by
Article 235 of the Treaty on European Union - and in consequence of such
ignorance, it appears to be inconsistent with this mechanism, in terms of necessity
and admissibility of review. Let us explain this away.
The fact that, under the circumstances of the relevant dispute, the court
ignored, rejected or failed to allow parties to debate, by default, upon the priority
of “Community” (European) standards in relation to national standards should be
considered an “error of law”, consisting in the case in the incorrect enforcement of
substantive rules. This “error of law”, which could have justified a petition for
“reversing” the decision or that justified a relevant petition request can not be
converted into a ground for “retraction” of the decision rendered, to debate for the
first time or to reconsider before the court of review the supremacy of Community
(European) standards.
8. The case under review provided by Article 21 par. (2) of Law no. 554/2004
and the case under review provided by Article 322 Section 9 Code of Civil
Procedure [by Article 503 par. (a) Section 10 of the future code, respectively] – the
European Court of Human Rights finding on the infringement of fundamental rights
and freedoms – are comparable, but, in our opinion, only to come up with the
conclusion that there are two assumptions for review essentially different: the first
one - regulated by a special rule – relates only to final judgments passed in
administrative litigation matters, the second one - regulated by a common rule –
relates to any final decision rendered on the merits or raised on the merits; the first
one substantiates on the violation of the “principle of supremacy of EU law” – more
precisely and specifically on non implementation of EU standards, especially the
“substantive” ones for the trial’s settlement on the merits - the second one
substantiates on the violation of “conventional procedural standards”, especially
those set forth under Article 6 par. (1) of the European Convention; as for the first
assumption, the claimant alleges simply and solely non-prevalent implementation of
a “Community” (European) rule in resolving the dispute on the merits, for the
second assumption, the claimant calls down a decision of the European competent
court, passed by this authority in his case, following an individual complaint against
the Romanian state referred to the European court.
Marking out these few differences between the two assumptions - most
relevant -, we hereby conclude – for our part, of course - that sometimes the
second assumption is raised in support of the former one, erroneously. There is no
other common element connecting them, but “review”.
9
9. As aforementioned, we argue that, under provisions set forth in Article 21
par. (2) of Law no. 554/2004, review is not compatible with ex-EU (European)
primary and derived standards concerning the preliminary question or prejudicial
matter before the Court of Justice of the European Union. To reach the conclusion
of inadmissibility of a similar ground for review - as required by the
aforementioned standards (!) - we hereby refer to the following assumptions: if,
on the interpretation or application of “Community” (European) standards, before
the appeal, the party requested the referral to the Court of Justice of the European
Union in order to obtain a preliminary ruling, and the court has refused or ignored
the request, review could be appealed to for this reason, as well, based on Article
304 Section 9 Code of Civil Procedure [Article 482 par. (1) Section 8 of the future
code, respectively]; if, in the same matter, the party requested the Appellate Court
referral to the Court of Justice of the European Union, which grants the request or
proceeds ex officio to refer to the European court, practically, there would be no
ground for review, as, pending the preliminary ruling under Article 235 of the
Treaty [Article 406 par. (1) Section 7 of the future code, respectively], the trial
should be adjourned; should the Appellate Court refuse or ignore the party’s
request to refer to the Court of Justice, it should be in position to file an appeal
within the appeal, for this reason, avoiding thus further complications and
ensuring the party’s right of access to justice, in this perspective also
20)
.
And yet, sometimes, a petition for review should be justified and, therefore, it
would be granted, the introduction of a similar ground along with the other
grounds provided under Article 503 par. (1) of the new Code of Civil Procedure
21)
being de lege ferenda imperative.
20)
De lege ferenda for the aforementioned ass umption, there should be regulated the
possibility of an appea l within the appeal, otherwise, the pa rty may dispose of no procedural
remedy should it be prevented from getting a court or der in compliance with Community
(European) law standards, equally. If after such an appeal within the appeal the court passes
however a final decision, contrary to the substantive rules of Community law, the only r emedy –
necessary in truth - is review, unfortunately not covered by the future cod e provisions.
21)
It would thus bate an ace for some r ules derived from the case law of the Court of Justi ce.
Thus, the Court held that “under the Treaty provisions, natio nal courts are under the duty to review
final judgments that are alleged to be rend ered in violation of EU law, but this obligation is
subordinated to the condition that the examinin g court shall rule, under regulations of its domestic
legal system, the competent court to reconsider litigious decisions” – s.n., I.D.; Gh.B. (Judgment
of March 16
th
, 2006, Case C-34/2004 in “Recueil de la Jurisprudence de la Cour de Justice et du
Tribunal de Première Instance”, 2006, p. 2585, par. 24.). Further references to this collection shall
be made by the abbreviation “Rec.” Likewise, calling down the principle of cooperation, the Court
held that it can be r everted to review of the d ecision in the case of incorrect interpretation of
Community law, failing to establish preliminary referrals thereof (decision of the Court, the Grand
Chamber of February 12
th
, 2008, Case C-2/2006, Rec. I, 2008, p. 411, par. 38.)
10
10. If, after the judgment passed in the case is ruled final - ignoring priority
and immediate application of EU rules against national rules
22)
or by
misinterpretation and misapplication of EU rules - the Court of Justice of the
European Union passes a different decision - following a preliminary question of
another Romanian court or another EU member state court -, the interested party
must be entitled, within a reasonable and consistent term with the principle of
legal certainty and constancy derived from a final decision to apply for and,
possibly, to obtain review of litigious decision
23)
.
Thus only shall exigencies of current relations between European standards,
including derived ones, and national standards be fully satisfied, in as far as:
national courts are obliged themselves to provide full effect to EU standards,
removing - whenever appropriate - the application of adverse regulations in
22)
Such a scenario would result from the reading, with different punctuation marks (!), of a
decision’s grounds. See: decision no. 1921/2010 of Cluj Appellate Court, Commercial,
Administrative and Financial Litigation Department (unpublished), commented by A.A. Irinel and
Gh. Buta, in “Revista română de jurisprudenŃă” (“Romanian Journal of Law”) no. 3-4/2010, p. 63-
65, 66-68 respectively. The wording of the decision commented, inter alia, goes: “The new ground
for review introduced by way of aforementioned provisions is incident should under the binding
decision no analysis have been undertaken with reference to the internal standard compatibility with
Community law and case law developed under it, or the analysis is incomplete, in which case the
reviewer must indicate which are the new arguments that would justify on its part grant of the
extraordinary remedy and abolition of binding decision, in addition to the arguments already
considered by the court. Previously mentioned recitals are justified by the fact that arguments
already considered can not be reintroduced by way of an extraordinary remedy, either, because it
violates the principle of res judicata. T here may be considered only new arguments drawn from
community standards, doctrine and jurisprudence developed under it, that might justify grant of an
exceptional circumstances, such as of defeat of the principle of res judicata and that require a
solution contrary to the one initially rendered by the court. Analysis of the petition for review shows
that all arguments called down by the reviewer in support of the appeal have previously been raised
in the court of appeal and already considered by the latter” (s.n. – I.D.; Gh.B).
23)
In this respect, together with extensive case law referred t o, see: decision of the Court of
Justice (Grand Chamber) of February 12
th
, 2008, Case C-2/2006; decision of the Court of Justice
(Grand Chamber) of J uly 18
th
, 2007, Case C -119/2005. The first of these decisions concluded: “1)
Within proceedings deployed before an ad ministrative body aiming to revie w a final
administrative decision pursuant to a judgment passed by a court of last resort, this decision being
grounded on an incorrect interpretation of Community la w, having regard to the case law of the
Court subsequent to this decision, Community law does not require to have been raised by the
principal within a means of appeal of national law which has been raised against the relevant
decision; 2) Community law sets no time limit for filing a petition for review o f a final
administrative decision. However, Member Sta tes may set at their discretion reasonable delays for
filing claims, in compliance with the Community principles of effectiveness and equivalence”. The
second decision concluded: “Community law precludes application of a provision of national law
which seeks to enshrine the principle of res judicata, like Article 290 9 of Italian Civil Code
(Codice Civile), to the extent that its application prevents recovery of state aid granted in breach
of Community law and its incompatibility with the common market was established by a final
decision of the European Communities Co mmission” (s.n. – I.D.; Gh.B.). For substantiation of
these conclusions, we shall reaffirm some of the recitals of cited judgments.
11
national law
24)
; referral of the question to the Court of Justice is based upon a
24)
It preys on our mind, however, whether the court seized of the dispute must itself - of
course, when appropriate – call down the existence of European ( ex-EU) standards, substantial,
incidental and pre-eminent, and its application in that issue as a priority, irrespective of t he reasons
rightfully put for ward by a party, or a similar assumption re mains dependent solely on the will of
the party concerned. It appears that a decision of the Court of Justic e urges for a negative answer,
as regards the duty of the national court. (Judgment of June 7
th
, 2007 in Joined Cases C-222/2005
and C-225/2005, “Rec.”, 2007, p. 6869, par. 34 et seq.). Within the meaning of some of the recitals
of this ruling, “neither the principle of equivalence, nor the principle of effectiveness agist the
national court to plead ex officio a ground relating to the violation of EU rules – disregarded by
the parties - when in domestic law the active role of judge is limited to plea ding ex officio grounds
of public policy strictly determined by the sub ject of the dispute, as it has been circumscribed by
the parties”- s.n., I.D.; Gh.B. The Court also stated that the justification for limiting national court
jurisdiction is retrieved in the principle accord ing to which the initiative of a trial devolves on the
parties, the national court acting ex officio but in exceptional cases, with the view to pro tect public
interest. However – holds the Court - from the perspective of the same principle of equivalence,
“if, under nationa l law, courts undertake to raise own legal objections on account of internal
regulations, which were no t raised by the parties, they are bound to act in the same manner as
regards Community rules, equally” (s.n., I.D.; Gh.B). Interpretation of these parentheses should
neither be pa rcelled, nor ignored any considerations of other European court rulings. On our part,
we judge that the national court is bound, when necessary, to claim the existence, pre-eminence
and priority of Community rules incide nt in that dispute, at least for the following reasons: in
default of a court similar to the European Court of Human Rights, as regards the effectiveness of
Community (European) rules, the national judge is, concurrently, judge with Community powers;
compliance and enforcement of Community rules is an immanent prerequisite for the European
legal framework; within the m eaning of the provisions of Article 20 and Article 1 48 par. (2) of the
Constitution, valorisation of Community rules within the national arena – with a mandatory, pre-
eminent a nd priority character - is a constitutional duty that, first of all, judges may not deflect
from, regardless of the procedural conduct of the parties; enforcement of substantive rules – a
fortiori the European ones – with the view to settle the dispute is not - and can not b e - at the
discretion of the parties; the very establishment of a “remedy” by means of review, in case of
violation of the principle of supremacy of EU law, involves the obligation of the judge t o comply
with this principle, preventively, so that t he retraction remedy of o wn decision is not app ealed to;
if the judge a quo can address ex officio a preliminary question to the Court of Justice, there is no
plausible ground as we may discern that he can not raise, withi n a trial whose settlement he has
been vested with, the existence of an unquestionab le European rule, l iable to be enforced under
that legal dispute. [As for this latter argument, we hereby bring into focus some of the Court ’s
circumstantiations: “... The system set up under Article 234 EC to ensure a uniform interpretation
of Community law in Member States shall establish direct cooperation between the Court and
national courts under proceedings independent of any initiative by the parties” – s.n., I.D.; Gh.B.
(Judgement of the Court of Justice, Grand Chamber of February 12
th
, 2008, Case C-2/2006,
“Rec.”, I, 2008, p. 411. On the same lines, see Judg ment of March 27
th
, 1963 in Cases C -28/1962
and C-30/1962, “Rec.”, I, p. 59, 76, Judgment of March 1
st
, 1973, in Case C-62 /1972, “Rec.”, I, p.
269, par. 4, Judgment of July 10
th
, 1997 in Case C-261/1995, “Rec.”, I, p. 4025, par. 31); “It can
not be inferred that, in order to meet the third cond ition established by this decision, it was
necessary for the parties to have raised before national courts the Community law issue in
question; indeed, for th is condition to be satisfied, it is sufficient either that the aforementioned
Community law issue whose interpretation has proven incorrect in the light of subsequent
decisions of the Court to h ave been sit on by the national court which ruled in the last instanc e, or
12
dialogue between courts, whose release depends entirely on the national court in
assessing the relevance and need for a preliminary ruling, although the party
failed to raise in its dispute European standards or even if it would oppose referral
to the European court
25)
; the fact that national courts – especially the appellate one
– ignored or refused to comply with provisions set forth in Article 235 of the
Treaty on European Union, in the form acquired under the Treaty of Lisbon, can
not be attributed to the party in the relevant dispute, which would otherwise be
required to bear the consequences of unlawful conduct committed by national
courts; the preliminary ruling bears no constitutive value, but a declarative one, so
that it shall be applicable from the effective date of rules read, and should this date
forego the final settlement of the dispute by the national courts, efficiency and
effectiveness of rules read can not be ignored; indeed, res judicata stands for the
foundation of legal certainty and constancy, but the effects resulting from this
authority may not exceed the limits of jurisdiction of national courts in relation to
EU rules; Member States are therefore under the obligation to establish procedural
remedies for cases in which, by their final decisions, the principle of supremacy of
European standards is ignored or violated, the review possibility ranging among
those remedies. In this regard, we judge the future regulation, enacted but not yet
implemented, surprisingly and punishably defective, as well
26)
.
However, in order not to jeopardize sine die the imperative of res judicata, in
respecting “the principle of equivalence” (regulation not less favourable than that
applicable to similar matters in domestic law) and “the principle of effectiveness”
(regulation not practically impossible or the exercise of rights conferred by
Community law not excessively difficult), review shall be determined by setting a
subjective deadline and an objective deadline in which the party may request
could have been raised ex officio by the said court” – s.n., I.D.; Gh.B. (Judgment of February 12
th
,
2008, cited above par. 44); “In this regard, it shou ld be noted that, although Community law does
not require national courts to raise ex officio a plea alleging breach of Community provisions,
when reviewing this ground would commit them to exceed the limits of dispute as filed by the
parties, these courts are bound ex officio to call upon grounds de jure based upon a bin ding
Community rule where, under national law, they are under the duty or may call them upon under a
binding national rule of law” – s.n., I.D.; Gh. B. [Judgment of the Court of Justice of February 12
th
,
2008, cited above, par. 45. Similarly, the Court cited, for instance, Judgment of December 14
th
,
1995, Cases C-431/1993 and C-430/199 3, “Rec.”, I, p . 705, par. 1 3, 14 and 22, and Judgment of
October 24
th
, 1996, Case C-72/1995, “Rec.”, I, p. 5403, par. 57, 58 and 60.]
25)
Judgment of the Court’s Grand Chamber of February 12
th
, 2008, Case C-2/2006, “Rec.”, I,
2008, p. 411, par. 41.
26)
We hereb y note that Article 503 of the new Cod e of Civil Procedure, enacted by Law no.
134/2010, failed to provide among the grounds for review the assumption debated upon herein,
either, perhaps, consider ing that the court must pro ceed ex officio to the id entification and
enforcement of European (ex-Community) law rules, where the circumstances of the dispute
involve a community component, as well, or the mechanism of the preliminary que stion, referred
to under Article 406 par. (1) Section 7 of this code, is sufficient. Without ignoring these possible
explanations, we judge that, yet for the grounds shown, we assist at a legislati ve gap.
13
retraction of final decision and rendering another one in its place, in compliance
with European standards.
11. Under Judgment no. 3525/2010 of the High Court of Cassation and
Justice, the Administrative and Financial Litigation Department (unpublished), it
was rejected the plea for delay of the petition for review, passed under the
provisions of Article 21 par. (2) of Law no. 554/2004, as well as the petition for
review itself.
Therefore deciding, the court stated, reasonably and absolutely compelling:
“The cited legal provision can not be interpreted in that it establishes an
obligation for the party seeking to lodge a petition for review with the view to
require notification of the decision within 15 days of its service, hence it runs out
the 15 days deadline for carrying out the means of appeal
27)
, but, on the contrary,
provides the person who accounts himself as aggrieved party a procedural
instrument by way of which he can shorten the overall time provided under
Article 17 par. (3) of the same Law, should the same deem that such action is
imperative to protect its legitimate rights or interests. The date from which flows
the deadline for lodging the petition for review is the date on which the judgement
is being served, whether or not the party requested notification under the above
terms. As from the documents filed it does not appear that the decision or appeal
would have been notified to the party, in order to be established with certainty
dies a quo, the High Court will reject the plea for delay raised by the respondent”
(s.n. – I.D.; Gh.B).
As to the ground for review cited, the court held the following: “The case for
review provided by Article 21 par. (2) of Law no. 554/2004 was thought as a final
internal remedy aimed to ensure pre-eminence of provisions under treaties
constituting the European Union and other mandatory community regulations, in
light of the principles and interpretations crystallized in the case law of the
European Union jurisdiction. The grounds for review are to be considered,
however, within the framework of general regulation of this extraordinary
retraction means of appeal, because Community law does not require a national
jurisdiction to resume discussion on the merits of the dispute and dispose of
enforcement of internal rules of procedure conferring res judicata to a ruling
...
28)
. The High Court shall range arguments and examine them in terms of
community rules and principles alleged to have been violated, considering the
27)
The Constitutional Court, by way of Judgment no. 1609/2010 (cited above), ascertained,
obviously substantiated, that under this issue as well, the purport “is poorly drafted, giving rise to
confusions and uncertainties which may stand for real obstacles to the effective exercise of the
right of access to j ustice.” Notwithstanding, we shall return with further considerations
thenceforth.
28)
On these lines, the Court cited ruling of the Court of Justice of European Communities of
March 16
th
, 2006, in Case C-23/2004.
14
provisions of Article 326 par. (3) Code of Civil Procedure, under which, in this
particular procedure, debates are limited to the admissibility of review and the
facts grounding it” (s.n. – I.D.; Gh.B.)
Implicitly qualifying the nature and effects of EU directive, the Court held
that “there is no question of direct applicability of Directive 2006/112/EC in
internal administrative, financial and legal procedures, the aforementioned
directive, amending Directive 77/388/EC, being implemented in national law by
the Government Emergency Ordinance no. 106 / October 4
th
, 2007 amending and
supplementing Law no. 571/2003 on the Fiscal Code, published in the “Official
Gazette of Romania” no. 703 / October 18
th
, 2007. In turn, Directive 77/388/EC
(the 6
th
Directive) was implemented earlier under Title VI – “Value Added Tax”
in the Tax Code”. And further: “The principle of legal certainty requires that any
act of the institutions that produce legal effects to be clear, definite and made
public to interested people, so that they can know with certainty when the act in
question was adopted and started to be effective. That requirement of legal
certainty is rigorously imperative in case of an act that could have financial
consequences, with the view to allow people concerned to know precisely the
extent of the underlying obligations”
29)
.
As to the legal uncertainty generated by the alienation from previous constant
case law in the matter, the High Court considers that the principle of legal
certainty, inferred from the interpretation of Article 6 of the European Convention
on Human Rights and Fundamental Freedoms set out in the preamble to the
Convention as a fundamental element of the rule of law, as it ensues from the
constitutional traditions common to the Member States, is a general principle of
Union law [Article 6 par. (3) of the European Union Treaty, as amended under the
Treaty of Lisbon]. “The existence of discrepancies in case law was accepted in
light of the European Convention on Human Rights and Fundamental Freedoms
as inherent to any legal system characterized by a multiplicity of jurisdictions,
being important to avoid a general climate of uncertainty and insecurity, reflected
in serious discrepancies of case law that persist over time, especially on level with
the supreme jurisdiction, in default of a mechanism to ensure consistency of legal
practice”
30)
(s.n. – I.D.; Gh.B.).
As no one, absolutely no one questions the primacy of European (ex-
Community) law in relation to domestic law – not only as an inevitable consequence
of the affiliation of the latter to a European legal order, which must be consistent and
pre-eminent, but also as a direction of harmonization of national regulations within
29)
Judgment of the Court of First Instance of January 22
nd
, 1997, in Case T-115/1994 (cited
by the Court).
30)
See also E CHR ruling of December 6
th
, 2007, Case Beian v. Romania (Official Gazette of
Romania, Part I, no. 616 of August 21
st
, 2008), and the ruling of December 1
st
, 2005, in Case
Păduraru v. Romania (Official Gazette of Romania, Part I, no. 514 of June 4
th
, 2006), both cited
by the Court.
15
the climate of the European one, upon the principle of autonomy of procedural means
and a reasonable margin of appreciation – we apprehend and raise on these lines, as
well, the need to institutionalize preventive and / or sanctioning procedures for
preventing or, as the case may be, removing inadmissible asynchronies between
European and national law. From such a perspective, as a “transient” solution and
within a “limited scope”, the ground for review under Article 21 par. (2) of Law no.
554/2004 should be accepted. This being the case, without reiterating comments
already made on this ground for review, we shall focus on some other ideas entailed
or suggested by the decision under debate.
The second sentence of Article 21 par. (2) of Law no. 554 / 2004 fails to excel in
terms of transparency
31)
: “Petition for review is lodged within 15 days from its
service which shall be made, notwithstanding the rule enshrined in Article 17 par. (3),
upon duly substantiated request of the interested party, within 15 days of its delivery”.
First, it should be advisable to explain away the nature of the two deadlines of
15 days, and the 30-day deadline, respectively, which is referred to
32)
. We judge
questionless that the first 15-day deadline – under which the petition for review
may be lodged - is a procedural delay of “revocation”; the second 15-day
deadline – the one under which, notwithstanding the common rule of “drafting
and grounding” (!) judgments passed in administrative litigation, judgment passed
would be “serviced” (!), appealable under review - can only stand for a
“recommendation deadline” – therefore, under strictly procedural matters, it being
useless – no other sanction, except for a possibly disciplinary one, resulting from
breach of the said deadline; the common deadline of 30 days - according to
Article 17 par. (3) of the Law – within which it should be acted for “drafting and
grounding” judgment passed, despite the imperative wording of the text it sets,
stands also for a “recommendation” deadline, going without any “procedural
penalties” (!) in case of its breach. Summa sumarum, regardless of qualification of
31)
It also fails to excel in terms of cohere nce: Article 17 par. (3) of the Law, to which it
refers, deals with “the drafting and grounding of the decision” (!), in a ny case, not with its
“servicing” (!), but Article 21 par. (2) of the Law allows deviation not from the term “drafting and
grounding”, but fro m the “servicing” one, for which the administrative litigation law does not
stipulate a particular term. In this respect, the Constitutional Court, in admitting the plea of
unconstitutionality of these provisions, also noted that “the purport undergoing criticism refers to
another bill regulating a totally different problem than the o ne the legislature would have intended
to clarify u nder the reference made; such a lack of legal certainty lets the interest party be unable
to know precisely the term to be complied with so that his petition for review is not dismissed as
belatedly introduced or, conversely, as premature ..., the intention of the legislature to accelerate,
under this regulation, settlement of the petition for review embodied under the form of a confusing
rule, as is erroneously referring to a purport not covering service of judgments, but regulates other
stages releva nt of the business carried out by judges, i.e. grounding and drafting of judgments”;
“or, it is ob vious that operation of servicing is not simultaneous to drafting and grounding, but,
naturally, subsequent, the distinct lapse between these points failing to be set under any legal
wording” (Judgment no. 1609/2010, cited above).
32)
For the purposes of the following, see also: I. Rîciu, op. cit., p . 402-405.
16
those deadlines, the indubitable conclusion is but one: the petition for review –
under the penalty of lateness - must be lodged within 15 days of judgment’s
“service”. In the same vein, though from another perspective, we hereby argue,
unreservedly, that the request of the interested party to be notified about the
decision within a shorter delay than the usual one can not be assimilated -
otherwise to some exceptional circumstances and bearing strict interpretation – to
cases of equipollence for exercising the remedy of review from the date of the
said request.
12. The purport of Article 21 par. (2) of the Law is, unfortunately, both
ambiguous and defective. As advisedly noted
33)
: it is not clear whether review
may be appealed only in the cases of “final and binding” judgments passed in first
instance or judgments passed on appeal, as well, subject to raising on the merits;
the 15-day deadline flows, invariably, from the “service” of the disputed
judgment, save the legal status of judgments decisions is different in terms of
“service”, as it is about judgments, “final and binding” following the expiry of the
deadline for appeal, or judgments that, fundamental in facts, are not serviced
34)
;
there are not circumstantiated “good grounds” that can be cited so that the
deadline for drafting and grounding the judgment is shortened and, most of all –
most of all (!) –, it is not specified who judges these grounds, the procedural
framework and possible consequences in case of their ignorance or wrong
qualification
35)
. If only for these reasons, the litigious wording should have been
referred to the “legal lab” for a new “processing”.
33)
See: G. Bogasiu, op. cit., p. 321-322.
34)
As aforementioned in the said judg ment, the Constitutional Court also noted that the
wording “is not very explicit”; ho wever, ultimately, by way of concession, it failed to rule
unconstitutionality of these provisions.
35)
With regard to these serious gaps in legislation, the Constitutional Court, by way of the same
decision no. 1609/2010, was categorical, ruling unconstitutionality of relevant provisions relating to a
“fully grounded” petition: “It is clear that the judge, following reception of the petition requiring
notification of judgment, undertakes to assess it in order to rule on its “good grounds”, as set forth under
the litigious wording. The viewpoint the judge is bound to issue should occur within a procedural
framework which does not exist, the petition being submitted, logically, following delivery of a final
and binding judgment (which, if not appealed by an extraordinary remedy, stands for the endpoint of
trial) and preceding its possible sequels by means of settlement of the petition for review. In other
words, it is about a stage outside any procedural framework, subsequent to the end of trial - after the
exercise of ordinary remedies, and preceding its possible continuation - due to introduction of review.
Or, the right to exercise this extraordinary remedy can be cancelled just by rejecting a similar petition,
whose sole purpose is the urging of judgment’s service eligible for review. The fact that its analysis is
being undertaken outside the trial itself, therefore, lacking the possibility of compliance with minimum
procedural safeguards, is unacceptable under a rule of law, and constitutes a disregard of the right to a
fair trial. Inaccuracy of wording creates uncertainty also as regards the competent judge to rule on the
merits of the petition requesting service of judgment whose review is intended to be requested by the
interested party, not being explicit whether this shall be reviewed by the same court that passed the
judgment to be contested, or by another court. Drafting defect affects, from this perspective as well,
17
The statement in that review, as a retraction remedy, does not entail the duty
of the court to “resume the merits of the dispute and remove enforcement of the
internal rules of procedure conferring res judicata to a judgment”, should be at
least “gradated”, in two respects: it goes without saying that review stands for a
“retraction” remedy, though it does not exclude, but actually often involves re-
judgment on the merits, should it be admitted, otherwise the review itself would
be rendered meaningless; as already mentioned
36)
, res judicata may not stand for
an insurmountable obstacle in re-judging the dispute – following grant of review -
for the purposes of enforcing Community (European) rules, this authority
connoting only express and reasonable conditions for removal
37)
.
The argument of the court, in terms of inevitability of discrepancies in case
law – basically, as it goes, accepted by the European Court in Luxembourg, as
well – must be taken with extreme reluctance, to which, as a matter of fact, even
the European Court urges
38)
by way of phrases such as: “a general climate of
uncertainty and insecurity”, “strong discrepancies”, “persistent discrepancies”,
“lack of mechanisms to ensure consistency of jurisprudence”. In short or in other
words, fundamental discrepancies, striking discrepancies, abnormal and repetitive
ones can not be accepted or can not be judged inherent
39)
.
right of free access to justice by the impossibility of the interested party to be aware to which court
should be referred the request for service of judgment. Likewise, the term “good grounded” is a
misleading phrase, both for the party and the judge. Solidity becomes a feature that may be relativised,
criteria of its evaluation being non-existent. Thus, the party can not fulfil its duty to ground the request
as required under the litigious wording, due to the fact that it is not aware of the extent in which the
grounds it would raise could be deemed sufficient to rule grounding as substantiated. Equally, the judge
is forced to assess upon criteria he will determine but discretionarily and transiently, in default of legal
statements according to which to decide on the solid grounds of the petition”. Constitutional Court’s
opinions are relevant and cogent, thorough and irrepressible, sparing any other comments. [The
Constitutional Court reconsiders, thus, its earlier opinion, because, indeed, it could only capture the fact
that, although it apprehended that there were perceived “some gaps of legislative technique likely to
have a bearing upon the terms of availability, predictability and clarity of the litigious legal rule,
however, in light of this finding, without any ground to the purpose and anywhere near persuasive, it
simply rejected the plea of unconstitutionality raised. (Judgment no. 675/2008, published in the Official
Gazette of Romania, Part I, no. 474, June 27
th
, 2008.) For some resolutions that could be derived via
interpretation, under the legislation at issue, see: I. Rîciu, op.cit., no. 402.]
36)
Judgment of the Court of Justice (Grand Chamber) of July 18
th
, 2007, in Case C-119/2005.
37)
Judgment of March 16
th
, 2006, in Case C-34/2004, “Rec.”, I, 2006, p. 2585, par. 24;
Judgment of the Court, the Grand Chamber, of February 12
th
, 2008, in Case C-2/2006, “Rec.”, I,
2008, p. 411, par. 38.
38)
See: Judgment of December 1
st
, 2005, in Case Păduraru v. Romania, cited above, especially
par. 98; Judgment of December 6
th
, 2007, in Case Beian v. Romania, cited above, especially par. 38.
39)
Provisions of the new Code of Civil Procedure, enacted, but still unenforced, are
considering just the establish ment or improvement of some “procedural mechanis ms” for ensuring
consistency in legal practice, including referral to t he Supreme Court for a preliminary ruling, as
provided by Article 512 et seq. Code of Civi l Procedure. Such procedures can be effective
provided they are associated with professionalism and accountability of judges. Otherwise, they
shall stand for a set piece, rhetorical pretexts.
18
13. In Decision no. 2683/2009 of the High Court of Cassation and Justice, the
Administrative and Fiscal Litigation Department (unpublished) – a painstaking
and convincing decision developed – with reference to Article 21 par. (2) of Law
no. 554/2004, the Court stated: “The case for review established under the cited
rule has been designed as a final internal remedy aiming to ensure pre-eminence
of provisions under the treaties constituting the European Union and other
mandatory regulations and shall be analyzed within the framework of general
rules on the retraction extraordinary appeal procedure for review, because EU law
does not require a national jurisdiction to remove enforcement of domestic rules
of procedure conferring res judicata to a judgment, even if thus would be repaired
a breach of EU law committed under the relevant judgment (Case Rosmari
Kapferer against Schlank & Schick GmbH, C-23/2004, Judgment of March 16
th
,
2006)”
40)
(s.n. – I.D. and Gh.B.). Findings are correct, but in order not to lead to
misunderstandings, it should be explained.
In our view, the court’s opinion – also “covered” by the judgment of the Court
of Justice referred to – should not be interpreted in that, in terms of the principle
of res judicata, review would not be granted to attain therefore enforcement of EU
rules, but only in that, in this area and in this matter, the establishment of review
gives particular expression to one of the principles of EU law: the principle of
subsidiarity
41)
. It is the principle often mentioned as “procedural autonomy”.
Establishment of review under provisions of Article 21 par. (2) of Law no.
554/2004 substantiates this perception.
References
Albu, E. (200 8). Dreptul contenciosului administrativ (Administrative Litigation Law),
Universul Juridic Publishing House, Bucharest
Beligrădeanu, Ş. (2010 ). Flagranta nelegalitate, în raport cu legea fundamentală, a refuzului
Înaltei CurŃi de CasaŃie şi JustiŃie de a aplica o dispoziŃie înscrisă într-o lege în vigoare, sub cuvânt
că aceasta „înfrânge dreptul la un proces echitabil” – deci este neconstituŃională –, deşi Curtea
ConstituŃională constatase constituŃionalitatea acelei prevederi legale (Flagrant illegality, in
relation to the fundamental law, of the refusal of the High Court of Cassation and Justice to
enforce a provision under an effective law, alleging that it “defeats the right to a fair trial” –
therefore it’s unconstitutional – although the Constitutional Court had already ascertained the
constitutionality of the relevant legal provision, in Dreptul (the Law) no. 7 /2010
Bîrsan, G. V.; Georgescu, B. (2008). Legea contenciosului administrative (Administrative
Litigation Law), no. 554/2004, Hamangiu Publishing House, Bucharest
Bogasiu, G. (2008). Legea contenciosului administrativ, comentată şi adnotată (Administrative
Litigation Law, commented and annotated), Universul Juridic Publishing House, Bucharest
Iorgovan, A.; Vişan, L.; Ciobanu, A. S.; Pasăre, D. I. (2008). Leg ea contenciosului
administrativ (Administrative Litigation Law), Universul Juridic P ublishing House, Bucharest
40)
It is a clerical error, it is in fact Case C-234/2004, “Rec.”, I, 2006, p. 2585.
41)
For that matter, the afore mentioned decision recalls that, in accordance with the p rinciple
of cooperation, the national judicial authority must rev iew a final judgment passed in breach of EU
law, “provided that this authority has, under national law, the authority to re consider” (par. 23-24).
19
Irinel, A. A.; Buta, Gh., in “Revista ro mână de jurisprudenŃă” (“Romanian Journal of Law”)
no. 3-4/2010
Rîciu, I. (2009). Procedura contenciosului admin istrativ (Administrative Litigation
Procedure), Hamangiu Publishing House, Bucharest
ŞtefăniŃă, C. (2010). Modul de procedare al instanŃelor judecătoreşti confruntate cu o
contradicŃie între o decizie a CurŃii ConstituŃionale şi o decizie pronunŃată de Înalta Curte de
CasaŃie şi JustiŃie, în SecŃii Unite, pentru soluŃionarea unui recurs în interesul legii (Methods of
proceedings of courts faced with a conflict between a decision passed by the Constitutional Court
and a decision passed by the High Court of Cassation and Justice, in Joint Sections, to resolve an
appeal in the interest of the law) in Dreptul (the Law) no. 4 / 20 10
Zotta, Gr. C. (1941). Codul de procedură civilă adnotat (An notated Code of Civil Procedure),
Bucharest
