The Obligation of the National Administrative Organs to Reexamine their Own Decisions in the Context of the Recent Jurisprudence of the Court of Justice of the European Union

• Author: Assistant Professor Gina Livioara GOGA, PhD in progress
• Position: "Danubius" University of Galati

Introduction

At this moment, the procedure of internal reexamination of administrative acts is applied at the level o Union institutions and national administrative authorities in virtue of the regulations existent within the secondary legislation of the Union. For example, in case of environment issues, the institutions of the European Union are obliged to offer value to the right to internal reexamination. By Decision on April 30^th 2008¹ the Commission is obliged to reexamine an administrative act and observe any breach of the legislation in environmental matters.

In Romania, the reexamination of the administrative acts is possible only in the context of the secondary legislation of the European Union. Thus, in EC Regulation no.883/2004 and its Implementation Regulation no.987/2009 in matters of retirement, acts that are mandatory and directly applicable for our country as well, it has been stated that in case the rights of a solicitant "are affected in a negative manner by the interaction between the decisions taken by the competent institutions" the solicitant has the right to have the decision taken by these institutions reexamined, with he obligation to respect the terms provisioned by the national legislation as well as the obligation to notify the decision in written to the notary.

Problem Statement

The issue of revoking administrative acts has to be regarded from the perspective of ensuring a good administration. Thus, in what concerns the possibility to reexamine or revoke an administrative decision in front of an administrative organ, remained definitive, to an instance of final rank, through a judicial decision based on an erroneous interpretation of the Union's law, the Court² held that this is possible as long as in the ulterior jurisprudence of the Court interpretations have been made regarding some dispositions in strong connection with the decision made. Also, there is no obligation for the plaintiff in the main cause to have invoked the provisions of the Union so that the reexamination is admissible.

Concept and Terms

As initially there hasn't been any regulation within the legislation of the EU, the principle of revocability of administrative acts was defined by the Court of Justice of the EU in Algera Cause³ in which the Court held that the retreat of a non legal act cannot take place, even if it created subjective rights. Thus, the revocation of the non legal act can take place at any moment, in the conditions in which the institution retracting the act respects due time and the legitimate confidence of the beneficiary of the act believed in its legality. In other words, the administrative authority has the power to analyze, if imposed, the retreat or not of the act, but this does not mean that it has a discretionary power, being held to respect the request of due time in revoking the act as well as the interests implicated in the cause. Contrariwise, a breach is brought to the principles of judicial security and legitimate confidence and in consequence, the act has to be annulled.

The obligation of an administrative organ to reexamine an administrative decision was established by the Court in Decision Kühne& Heitz⁴ in which the conditions in which an interpretation of a relevant disposition held by the Court in the meantime were presented. The four conditions that have to be fulfilled and were held by the Court of Justice in cause Kühne& Heitz are: the regulation of the right to return to an administrative decision with definitive character, in the law of the member state; the existence of a definitive decision, taken by a national instance of final rank; the decision taken by this instance has to be based on an erroneous interpretation of the European Union's law, issued without the request of an appeal of interpretation; the request that the person interested in reexamining the case has to address to the administrative organ immediately after being informed on the recent jurisprudence of the Court.

The issuing of such a decision determined numerous reactions from the states but also ulterior interpretations from the Court, considering the decisions in interpretation granted to it. In the first place, the issue related to the necessity of ensuring the stability of the judicial decisions remained definitive was brought to attention, more exactly, the principle of res judiciata existent within the national judicial order. Thus, the member states were facing a fact, as many principles had to be interpreted in view of ranking the importance granted. To start with, we have to mention the principle of supremacy that determines the respect of the EU law. But once such a decision imposes its application to the member states in view of reexamining a decision, the following question is raised: can the judicial security, as stability of the definitive judicial decisions be brought to discussion? In this context, the member states have responded indicating that regarding the guarantee of the stability of law and judicial relations as well as a good administration of justice cannot be brought in discussion, in the context in which a decision obtained by a definitive decision after exhausting the ways of appeal is again brought in discussion.

The answer to this issue can be extracted from the interpretation given by the Court in the cause Germany Arcor⁵ in the light of the decision given previously in the cause Kühne& Heitz from which results that the administrative organ "responsible for the adoption of an administrative decision is obliged, according to the principle of cooperation deriving from article 10 EC, to...