The exception of illegality in contentious-administrative

Author:Elena Emilia ?tefan
Position:Lecturer, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (email: stefanelena@gmail.com).
Pages:42-47
SUMMARY

By way of exception of illegality the party of a dispute is entitled to invoke the irregularity of an administrative act. Therefore, this study shall present the regulation of the exception of illegality, respectively the provisions of the Law no. 554/2004 of the contentious-administrative, showing through the doctrine and the jurisprudence the possible weaknesses of the current normative... (see full summary)

 
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LESIJ NO. XXI, VOL. 2/2014
THE EXCEPTION OF ILLEGALITY IN CONTENTIOUS-
ADMINISTRATIVE
Elena Emilia ŞTEFAN*
Abstract
By way of exception of illegality the party of a dispute is entitled to invoke the irregularity of an
administrative act. Therefore, this study shall present the regulation of the exception of illegality,
respectively the provisions of the Law no. 554/2004 of the contentious-administrative, showing through
the doctrine and the jurisprudence the possible weaknesses of the current normative regulations. There
will also be discussed case studies from the recent practice of the High Court of Cassation and Justice
concerning the exception of illegality. Last but not least, our conclusions will focus on the highlighting
of several critical observations on the current state of the subject proposed, our approach considering
in this purpose the warnings that come from the practice of the courts.
Keywords: Law no 554/2004, exception of illegality, liability, individual unilateral
administrative act, contentious-administrative
1. Introduction*
The exception of illegality has also
been called in the doctrine ‘the plea of
illegality” and has been known in our legal
system prior to the Law no.554/2004
1
, of the
contentious-administrative, respec tively to
the Law no. 1/1967 on the courts judgment
on the claims of those whose rights have
been prejudiced by illegal administrative
acts
2
. The doctrine defined the exception of
illegality as being: “a means of defence by
which during a process for other grounds
besides the illegality of the administrative
* Lecturer, PhD, Faculty of Law, Nicolae Titulescu” University of Bucharest (email: stefanelena@gmail.com).
1
Law no.554/2004 of the contentious-administrative, published in the Official Gazette no. 1154/2004.
2
Law 1/1967 on the judgment performed by the court of the complaints of those whose rights were prejudiced by
illegal administrative acts, published in the Official Journal no.67/1967
3
It can be noticed that the author refers to the administrative acts, being well known in the doctrine the theoretical
disputes of the two schools of administrative law in our countries on the concepts, namely the School of Bucharest
used the concept of administrative act and the School of Cluj which exponent was the professor Tudor Draganu, the
concept of administrative law. But essentially the disputes were only theoretical, the concepts being similar.
4
Tudor Drăganu, Actele de drept administrativ (Administrative Law Acts), Ed.Științifică, Bucharest, 1959, p.260.
For the same purpose, see și Antonie Iorgovan, Tratat de drept administrativ (Administrative Law Treaty), vol.II,
4th edition, Ed.All Beck, Bucharest, 2005, p.677, Verginia Vedinaș, Drept administrativ (Administrative Law), 3rd
edition reviewed and updated, Ed. Universul Juridic, Bucharest, 2009, p.187.
law act
3
, one of the parties threatened to be
applied such an illegal act, defends oneself
by pleading this defect and requires th e act
not to be taken into account in solving the
case
4
.
Although it was not expressly
regulated in the legislation prior to the La w
no. 554/2004, the exception of illegality of
the normative administrative acts was
accepted as a procedural mean of defence
that could be sub mitted before any court, in
a traditional way in the Romanian
contentious, both by the parties and by the
ex officio court and is settled by the
competent court to hear the case in

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