Objective contentious matters in Romania and their unexplainable vulnerabilities

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

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