The administrative contentious

• Author: Catalin-Silviu Sararu
• Profession: PhD, is Associate Professor at the Law Department of Bu-charest University of Economic Studies
• Pages: 111-129

Chapter XIII

The administrative contentious

1. The notion of administrative contentious

The term "contentious" comes from the Latin word contendere = to fight,

confront and, from a legal perspective, serves to designate the character of judi-

cial acts and procedures that involve contradictory debates, summoning of par-

ties, etc., the processes that are carried out before the courts being similar for a

long time "to some legal battles where each party is fighting contradictory for the

recognition and defense of its right"1.

The administrative contentious institution comprises all the legal rules

governing the settlement of disputes in which at least one of the parties is a public

authority, litigation aimed at harming a person's right or legitimate interest

through an administrative act or by not resolving within the legal term of a re-

quest. Currently the regulation of this institution in Romania is achieved by Law

no. 554/2004 of the administrative contentious2.

The way in which the administrative contentious in a state is regulated

reflects the degree of democratization of that country, the extent to which legal

guarantees are made available to the citizen in order to defend against the abuses

of public authorities3.

The regulation of the administrative contentious must provide the spe-

cialized courts with clear procedural rules, capable of drawing up the procedural

rights of the litigating parties, having as final aim the protection of the substantial

rights violated by the illegal administrative acts.

2. Categories of administrative contentious

Depending on the solutions that can be pronounced by the court, the ad-

ministrative contentious can be: administrative annulment contentious or admin-

istrative contentious with full jurisdiction.

The annulment contentious presupposes that the administrative litiga-

tion court can only pronounce by a court decision on the annulment of an admin-

istrative act challenged on the grounds that it was issued or adopted in violation

of the legal provisions. In the case of the annulment case, the litigation court is

1 See Constantin G. Rarincescu, op. cit., 1936, p. 105, n.s. 1.

2 Published in the Official Gazette, Part I, no. 1154 of December 7, 2004, as subsequently amended.

3 Verginia Vedina, Liliana Vian, Diana Iuliana Pasre, Argumentare juridic european în

favoarea necesitii modificrii Legii contenciosului administrativ. Succint prezentare a Legii nr.

262/2007, „Revista de Drept Public” no. 3/2007, p. 77, 78.

112 Ctlin-Silviu Sraru

not competent to solve the problem of damages repair. The damages can be re-

paired by means of a separate litigation, by the common law courts.

The administrative contentious with full jurisdiction is one in which the

administrative litigation court is competent to annul the administrative act of au-

thority by which a claimant was injured in a right recognized by his law, to oblige

the public authority to issue an administrative or other act, as well as the award

of damages for the repair of the damages produced by the administrative act con-

tested. Law no. 554/2004 provides in art. 1 that any person who is considered

injured in his or her right or in a legitimate interest, by a public authority, by an

administrative act or by not resolving within the legal term of an application, can

address the competent administrative litigation court, for the annulment of the

act, the recognition of the claimed right or the legitimate interest and the repara-

tion of the damage caused to it. Thus we find that the Romanian legislator has

consecrated the administrative contentious of full jurisdiction.

Depending on the nature of the interest injured by the contested admin-

istrative act, the administrative contentious may be objective or subjective.

The administrative contentious is objective when the litigation is based

on a legitimate public interest aimed at according to art. 2(1) letter r) of the Law

no. 554/2004 the law order and the constitutional democracy, guaranteeing the

fundamental rights, freedoms and duties of the citizens, satisfying the community

needs, realizing the competence of the public authorities. The contentious objec-

tive concerns a litigation against the administrative act strictly related to the vio-

lation of normative acts governing its issuance or adoption. The actions brought

under the conditions provided by the Law no. 554/2004 by the Public Ministry,

the People's Advocate, the National Agency of Civil Servants, the prefect and any

other subject of public law for the defense of a legitimate public interest.

The administrative contentous is subjective when the litigation is based

on a subjective right or a legitimate private interest that is alleged to be harmed

by an administrative act. The injured right is defined by art. 2 (1) letter o) of Law

no. 554/2004 as any right provided by the Constitution, by law or by other nor-

mative act, to which an administrative act is affected. The legitimate private in-

terest represents according to art. 2 (1) letter p) of the Law no. 554/2004 the pos-

sibility to claim a certain conduct, considering the realization of a future and pre-

dictable subjective right, foreshadowed. The subjective contentious concerns a

litigation that has at its center the concern with the violation of subjective rights

or legitimate interests of the people, without worrying about the objective legality

of the administrative act. Thus, we will be in the presence of a subjective conten-

tious when a person is harmed in his/her private legitimate interest by refusing

the public authority to issue the requested building permit and introducing an ac-

tion in the administrative contentious which requires the public authority to issue

the building permit and to pay damages for the material and moral damages

caused.