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

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