Objective contentious matters in Romania and their unexplainable vulnerabilities

Author:Ovidiu Podaru
Position:Faculty of Law, Babes-Bolyai University, Romania
Pages:370-381
SUMMARY

The objective contentious matters should be a lethal weapon for the administrative acts challenged at the court specialised in this kind of issues, because, unlike the subjective contentious matters, they do not depend - or at least they should not depend - on the plaintiff’s (which is, by definition, a public authority) proving a subjective right or a personal legitimate interest injured by the... (see full summary)

 
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Objective contentious matters in Romania and their
unexplainable vulnerabilities
Associate professor Ovidiu PODARU1
Abstract
The objective contentious matters should be a lethal weapon for the administrative
acts challenged at the court specialised in this kind of issues, because, unlike the subjective
contentious matters, they do not depend or at least they should not depend on the
plaintiff’s (which is, by definition, a public authority) proving a subjective right or a
personal legitimate interest injured by the administrative act. Relieved from this burden,
the plaintiff’s task within an objective contentious matter should be easy: to come up with
the proof that the case object contravenes a rightful rule with a superior legal force. In this
case, the challenged act is annulled by the decision of the administrative contentious court
and, as an expression of the public interest prioritising principle, it derives from the other
one, which is more general, namely the principle of lawfulness. Nonetheless, at least three
legal provisions of the Act no. 554/2004 section 1, par. (3), section 3, par. (1) and section
28, par. (3) highlight a few weaknesses of this type of contentious matters, either by
conditioning them upon the fate of certain subjective contentious matters which by
definition are more fragile or by placing the plaintiff, by virtue of the law, in a legal
status inferior to the one that the plaintiff within a subjective contentious matter enjoys.
And these weaknesses are surely worth being analysed, because so far neither the doctrine
nor the case law seems to have at least noticed them.
Keywords: objective contentious matter, the Ombudsman, the Prefect, withdrawal of
the case.
JEL Classification: K41, K49, K23, K19.
1. The administrative contentious matters filed by the Ombudsman are
„hanging on a thread”
One of the most doubtful and, at least seemingly, irrational provisions of the
law is set forth under section 1 par. (3): “If the Ombudsman, after having
performed a review, in line with the organic law regulating his remit, deems that
the lawfulness of the act or the refusal of the administrative authority to perform its
legal duties cannot be set aside except by a court of law, he can bring the matter
before the competent administrative contentious matter court that has jurisdiction
for the usual place of domicile of the plaintiff. The petitioner lawfully acquires the
capacity of plaintiff and is to be summoned in such capacity. Unless the petitioner
1 Ovidiu Podaru Faculty of Law, Babeş-Bolyai University, Romania. The author is the incumbent of
the Administrative Law (I and II), Contravention Law and Urban Planning Law courses, at the
Public Law Department, opodaru@law.ubbcluj.ro

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