The Quasi-Contentious Appeal

Author:Ioan Lazar
Position:Assistant prof. at the '1 Decembrie 1918' University of Alba Iulia, Lawyer - Alba Bar
Pages:1-16
SUMMARY

The present study tries to analyze the problematic of the quasi-contentious appeal in the context of the administrative jurisdiction in the positive Romanian law. The special administrative jurisdictions are found in the regulations of Art. 24 para. (1) of the Romanian Constitution, “Special administrative jurisdictions are optional and free”; this allows those involved in the justice act to choose between the Court or the Judgment Court. The special administrative jurisdiction in financial matter was initially present in the activity of the Romanian Court of Accounts which, however, lost these powers. Currently, according to the author's opinion, the National Council for Claims Settlement is a competent body in this matter; its activity is regulated by the Government Emergency Ordinance no. 34/2006 As we show in the present work we consider that the procedure to settle the litigation before the Council can be categorized as an administrative-jurisdictional; the body issues administrative-judicial acts to settle the dispute. Also, the appeal filed before the Council presents the characteristics of a quasi-contentious appeal, an appeal before a body having judicial powers.

 
CONTENT
1
THE QUASI-CONTENTIOUS APPEAL1
Ioan LAZ;R, Phd.,
Assistant prof. at the “1 Decembrie 1918”
University of Alba Iulia,
Lawyer - Alba Bar
Abstract
The present study tries to analyze the problematic of the quasi-contentious appeal in
the context of the administrative jurisdiction in the positive Romanian law.
The special administrative jurisdictions are found in the regulations of Art. 24 para.
(1) of the Romanian Constitution, “Special administrative jurisdictions are optional and
free”; this allows those involved in the justice act to choose between the Court or the
Judgment Court.
The special administrative jurisdiction in financial matter was initially present in the
activity of the Romanian Court of Accounts which, however, lost these powers. Currently,
according to the author's opinion, the National Council for Claims Settlement is a
competent body in this matter; its activity is regulated by the Government Emergency
Ordinance no. 34/2006
As we show in the present work we consider that the procedure to settle the litigation
before the Council can be categorized as an administrative-jurisdictional; the body issues
administrative-judicial acts to settle the dispute. Also, the appeal filed before the Council
presents the characteristics of a quasi-contentious appeal, an appeal before a body
having judicial powers.
Keywords: quasi-contentious appeal, body with jurisdictional-administrative
responsibilities, administrative jurisdiction, the National Council for Claims Settlement,
public procurement, administrative contracts.
Sometimes, the government's actions raise discontent, harm the
interests, and cause complaints. They come especially from individuals who
are in contact with the government (...). Accumulated discontent creates a
political risk, causing media campaigns violence, street demonstrations,
difficulties for the government, shifting votes, changing the majority in the
parliament, a deallocation of the authority, and end up causing even
1 This paper is a modified and reviewed form of the study published in Romanian by the author in the
journal of Public Law no. 1/2010, p. 63-78 under the title of “The Quasi-Contentious Appeal in Financial
Matter”. E-mail: avocat_lazar@yahoo.com
2
revolutions (...). To avoid explosions, the government structures’ system
must be equipped with safety valves. Administrative appeal’s institution must
be accepted, it is necessary to establish the jurisdictions and contentious
administrative systems should be organized.1.
Ioan Alexandru
I. Introductory aspects
Over time, there have been various attempts to transform and revitalize the judiciary,
more or less successful, which led to the emergence of administrative institutions with
judicial competence, that have tried to complement and enhance the work of the Courts.
For example, in the period prior to the revolution of 1989, according to Law No. 59/19682
there were operating as bodies of public jurisdiction, the known Judgment Committees,
considered by those times legal literature both as public influencing bodies3 as well as a
tribunal or Court4. Time has proven their usefulness, having as consequence the
disappearance or loss of the judicial powers of others - the case of the Romanian Court of
Accounts5.
Until the amendments to the Romanian Constitution in 2003, the administrative
Courts were usually binding; for settling disputes the litigants had the possibility to
choose between a Court of common law and an administrative Court. This has resulted in
criticism both in practice and in theory aimed precisely at the constitutionality of legal
provisions introducing the compulsory nature of “administrative Courts”.
The optional nature of special administrative Courts, stipulated by Art. 24 para. (1) of
the Constitution republished - “Special administrative Courts are optional and free”,
allowed litigants to choose either to refer to a judicial administrative body or a Court of
law.
The Constitutional Court held that the existence of prior administrative judicial
procedures is supported also by the European Court of Human Rights case law by which,
in relation to the enforcement of Art. 6, paragraph 1 of the Convention for the Protection
of Human Rights and Fundamental Freedoms, emphasized that: „Demands of flexibility
and efficiency, which are fully compatible with the protection of human rights, may justify
the prior intervention of administrative or professional bodies (....) which do not satisfy
1 I. Alexander, Public Administration Treaty, Universul Juridic Publishing House, Bucharest, 2008, p.
652-653.
2 Published in the Official Gazette no. 169 of December 27, 1968.
3 For a broad approach of the administrative courts prior to the events of 1989 see also Ş. Beligrdeanu,
Judges’ commissions, Scientific Publishing House, Bucharest, 1971; V. Priscaru, Special courts in the RSR,
Academy Publishing House, Bucharest, 1974
4 Ş. Beligrdeanu, Judges’ ...op.cit., p. 17.
5 The Romanian Court of Accounts is the “Supreme institution for subsequent external financial
control” (see M. Şt. Minea, E. Iordchescu, A. M. Georceanu, Right of public finances in Romania, Accent
Publishing House, Cluj Napoca, 2002, p. 371). Some authors of the legal literature considered it the only
institution with administrative and jurisdictional powers in financial matters; however, it lost these powers
after the 2003 constitutional revision. Following G.E.O. no. 117/2003, the Court of Accounts courts’ judicial
activity and staff were taken by the courts of law.
3
the said requirements in every respect; the legal tradition of many member States of the
Council of Europe may be invoked in support of such a system”1(Le Compte, Van Leuven
and de Meyere v. Belgium)2. However, in our opinion, the question for special
administrative jurisdictions includes: their usefulness in a legal system, to what extent
their contribution in the achievement of justice brings benefits, under objective terms, and
how it could provide the litigant with subjective motivation to use such a procedure3.
A particular situation of administrative jurisdictions4 is the special administrative
jurisdiction in financial matters5. In the past, the Court of Accounts of Romania was the
first administrative institution with jurisdiction in financial matters; it lost the said
jurisdiction in 2003, following the revision of the Constitution. Today, we believe that the
Romanian objective law establishes, through the Government Emergency Ordinance no.
34/20066 a body of administrative jurisdiction with powers which are also found in
financial matters - the National Council for Claims Settlement.
As we know, the Government Emergency Ordinance No. 34/2006 regarding the
award of the public procurement contracts, public works concession contracts and
services concession contracts (hereinafter also referred to as the “Ordinance”), is a
framework regulatory act on public procurement and is one of the urgent legislative
measures through which Romania intends to transpose the EU rules on public
procurement7.
1 The European Court of Human Rights, ruling on the case “Le Compte, Van Leuven and de Meyere v.
Belgium” (1981) noted that a Belgian physicians organization, established by law, is not a form of association
to fall within Art. 11 of the Convention. Justification of the Decision stated that this organization has the
nature of an institution governed by public law which by its legal nature and its own functions performs a
public interest activity, revealing that in this way it fits into achieving goals of a general nature profitable also
for those called to be part of this organization.
2 C. L. Popescu “Constitution Fraud brought by Law no. 174/2004 for approving the GO no. 92/2003
concerning the Fiscal Procedure Code, specifically characterizing tax procedure as Administrative
procedure” in “Judiciary Courier” no. 7-8 / 2004, p. 197.
3 With regard to advantages of the administrative courts, see I. Lazr, Advantages of administrative
courts in the administration of justice, with special regard to the mediation, “Journal of Public Law” no.
1/2009, p. 57-67.
4 For a comparative analysis between common law jurisdictions and special administrative courts, as
well as a study of the latter, see C.E. Alexe, The judge in civil proceedings: between playing an active role
and arbitrary, vol. I, C.H. Beck Publishing House, Bucharest, 2008, p. 109-119, V. Vedinaş, Administrative
Law, IIIrd edition, Universul Juridic Publishing House, Bucharest, 2007, p. 129-131; D. A. Tofan,
Administrative Law, vol. II., All. Beck Publishing House, Bucharest, 2004, p. 265-276; O. Puie,
Administrative contentious. vol. I, Universul Juridic Publishing House, Bucharest, 2009, p. 311-347.
5 See also I. Lazr, Administrative Jurisdictions in Financial Matters, Universul Juridic Publishing
House, Bucharest, 2011.
6 Published in the Official Gazette of Romania, Part I, no. 418 of 15 May 2006, was approved with
amendments by Law no. 337/2006 published as rectified in the Official Gazette of Romania, Part I, no. 622 of
August 1, 2006.
7Government Emergency Ordinance no. 34/2006 transposes Directive no. 2004/18/EC on the
coordination of procedures for the award of public works, supply and services, Directive no. Directive no.
2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and
postal services sectors, published in the Official Journal of the European Union (OJEU) no. L134 of 30 April
2004, except Art. 41 (3), Art. 49 (3) - (5) and Art. 53 which are transposed by the Government decision,
Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and
administrative provisions relating to the application of review procedures to the award of public supply and
public works contracts, published in the Official Journal of the European Communities (OJEC) no. L395 of
4
In the rush to proceed with the implementation of the Romanian legislation according
to all directives within a single normative act is objectionable; this was noted in the
literature, too1. Overall, due to its size, the Ordinance is brushy, sometimes blurred, with
many references which makes the studying and deepening thereof very difficult. As a
result, the author asks herself, opinion to which we concur, if it wouldn’t have been
normal that each Directive to be transposed separately into a normative act without
merging them, as, in fact, each of them is published in one of the Official Journal of the
European Union issues? Another aspect raised at that time was the fact that the
Government Emergency Ordinance no. 34/2006 did not provide explicit indications about
the public-private partnership agreement2.
To conclude, it was emphasized that the Government Emergency Ordinance no.
34/2006 did nothing but increase the ambiguity in the public-private partnership contract,
and on the other hand, although it states that it regulates the procedures the award of
public works and services, it covers only some general references to this issue. Neither
the Ordinance implementing rules contained in Government Decision no. 925/2006 did
not provide with details on the concession of public works and services, but only on the
public procurement contract. Thus, within the context of the Government Emergency
Ordinance no. 34/2006, public-private partnership agreement was regarded as a variant of
the concession agreement and as an administrative contract in terms of the legal nature3.
Public-private partnership agreement is of particular importance in the administrative
work of the European countries, due to the development of public-private institution,
which gave rise to extensive regulation within their laws. Romanian lawmaker considered
necessary to repeal the Government Ordinance no. 16/2002 on public-private partnership
contracts4 through Government Emergency Ordinance no. 34/2006 which, however, in its
time did not contain provisions on this type of agreement or a definition of the public
partnership agreement, as there was in previous legislation5. Subsequently, amendments
30 December 1989, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations
and administrative provisions relating to the application of Community rules on the procurement procedures
of entities operating in the water, energy, transport and telecommunications sectors, published in the Official
Journal of the European Communities (OJEC) no. L76 of 23 March 1992, except articles 9 to 11 which are
transposed by the Government decision. Directives no. 2004/18/EC and no. 2004/17/EC amended by
Commission Regulation (EU) no. 1251/2011 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC
of the European Parliament and of the Council in respect of their application thresholds for the procedures for
the awards of contract. Although subsequent amendments were made to the Government Emergency
Ordinance no. 34/2006, the lawmaker did not update the application thresholds for complying with the
requirements of Commission Regulation (EU) no. 1251/2011
1 See R.N. Petrescu “The Impact of enacting the Government Emergency Ordinance on the public-
private partnership agreement”, the “Journal of Public Law” no. 1/2007, p. 97-99.
2 With regard to public-private partnership agreement see: L. Chiriac, De la nature juridique du contrat
du parteneriat public-prive, (D:/ICELM CD/default.htm); D.A. Tofan, Administrative Law vol. II, All Beck
Publishing House, Bucharest, 2004, p. 172; D.A.Tofan, Some considerations on the public-private
partnership legislation, in the “Journal of Public Law” no. 2/2004, p. 93.
3 See R. N. Petrescu, The Impact ... Op. cit., 2007, p 103. However, for proper study on administrative
contracts see: C.S. Sraru, Administrative contracts. Regulation. Doct rine. Case Law, C.H. Bucharest, 2009; A.L.
Nicu Public institution in administrative law, Universitaria Publishing House, Craiova, 2003, p. 253-261.
4 Published in the Official Gazette of Romania, Part I, no. 94 of February 2, 2002.
5 E.O. no. 16/2002 , in art 1^1 defined the public-private partnership agreement for works concession:
“it is a agreement for the execution or, where appropriate, both the design and execution of one or more
construction, as they are included in the official statistical classifications, or execution by any means of any
5
made by Law no. 279 of 20111 amending and supplementing Government Emergency
Ordinance no. 34/2006 defined the concept of “public private partnership” as “carrying
out a joint project by two or more public entities, national and / or international”. After
about 4 years of the entry into force of the Government Emergency Ordinance no.
34/2006 the Romanian Parliament adopted Law no. 178/2010 of public-private
partnership2 whose purpose is to regulate the initiation and implementation of private
funding public-private partnership projects for public works in various sectors3. The new
law defines public-private partnership agreement (also called project agreement in the
law wording) as - the legal document that stipulates rights and obligations of both the
public partner and investor throughout the entire public-private partnership, covering
one or several stages of the public-private partnership project, for a definite term4.
As far as we are concerned, we believe it is beneficial to develop uniform procedures
for administrative contracts, context which can remove from the Romanian administrative
landscape the bureaucracy arbitrariness in the relationship between the administered and
the authorities invested with the public power prerogatives. The situation can be
significantly improved by the emergence, within the Romanian legal scenery, of an
administrative code and a code of administrative procedure. As shown by Professor Ioan
Alexandru5, it is necessary to regulate - through an administrative and administrative
procedure code - the rights and citizens in relationships with the government and the
procedures to be followed in these cases.
II. The National Council for Claims Settlement - administrative-judicial body
In an attempt to define the concept of administrative jurisdiction, we have mentioned
it as the “work performed by an independent body with respect to the Courts and
impartial in relation to the parties to the conflict, authorized by a special law to judge
only certain disputes expressly provided by a special law, under adversarial conditions
and the possibility of the parties to produce evidence before that body which ultimately
issues an administrative-judicial document, that may be appealed against in Court”6.
1. As noted, the normative act on public procurement is the G.E.O. no. 34/2006
which, in chapter 9, regulates the organization and functioning of the National Council
for Claims Settlement - hereinafter also referred to as the Council - the statute of its
combination of such construction that meets the requirements of the contracting authority and which leads to
the result intended to carry out, in itself, an economic and technical function. In return for works carried out,
the contractor, as concessionaire, receives the right to exploit the result of the work in whole or in part; if
necessary, a payment may be added to this right”.
1 Published in the Official Gazette of Romania, Part I, no. 872 of December 9, 2011.
2 Published in the Official Gazette of Romania, Part I, no. 676 of December 5, 2010.
3 For an analysis of the public-private partnership issue under the regulation of Law no. 178/2010 see O.
Puie, Public-private partnership, Universul Juridic Publishing House, Bucharest, 2011.
4 Art. 4 letter (g) of Law No. 178/2010.
5 I. Alexandru The government crisis, All Beck Publishing House, Bucharest, 2001, p. 12.
6 I. Lazr, Administrative Jurisdictions in Financial Matters, Legal Universe Publishing House,
Bucharest, 2011, pp. 62-63.
6
members, the appeal resolution procedure before the Council, measures and decisions it
may take and the remedies at law against Council's decisions.
The National Council for Claims Settlement is a public authority operating with the
Government’s General Secretariat and having the following responsibilities:
- settlement of appeals filed in the course of the award procedure through specialized
panels1, established under the Council’s rules of organization and operation approved
pursuant to Art. 2912;
- rule on the legality of the procedures and operations conducted by the contracting
authority in awarding a public procurement contract, in accordance with the Ordinance;
According to Art. 255 of the Ordinance, “any person who considers itself prejudiced3
in connection to one of its rights4 or a legitimate interest5 by an act of the Contracting
Authority, in violation with the legal provisions in public procurement matter, may
request the cancellation of such act, the obligation of the Contracting authority to issue
an act, the recognition of its claimed right or legitimate interest in administrative-
jurisdictional matters, as provided by this Government Emergency Ordinance”.
As follows from the express provision of the law, the legal nature of the appeals
resolution procedure is an administrative-jurisdictional one6, issue arising from both the
manifest intention of the law maker and of this procedure’s extrinsic characteristics1.
1 Art. 266 of the G.E.O. no. 34/2006.
2 Art. 291 G.E.O. no. 34/2006 “The Council’s Rules of organization and operation is approved by
Government Decision at the President of the Council’s proposal”.
3 For the purposes of Art. 255 para. (2) of Government Emergency Ordinance No. 34/2006, “prejudiced
person” is any person who meets the all the following conditions: a) has or had a legitimate interest in
connection with the concerned award procedure; b) has suffered, is suffering or likely to suffer damage as a
result of an act of the contracting authority such as to produce legal effects or due to failure to resolve a
request regarding that award procedure within the legal term.
4 According to Art. 2 para. (1) letter (o) of Law No. 554/2004, a “prejudiced right” is - any right under
the Constitution, the law or other normative act which is affected by an administrative act.
5 Art. 2 para. (1) letters (p) and (r) of Law No. 554/2004 define the concepts of: “private legitimate
interest" - the possibility to claim a certain behavior, considering the implementation of a future subjective
and foreseeable right, envisioned, and "legitimate public interest" - interest targeting the rule of law and
constitutional democracy, guaranteeing the fundamental rights, freedoms and duties of citizens, meeting the
needs of the Community, and achieving the proficiency of public authorities;
6 The legal literature - see C.L. Popescu, Administrative courts under revised constitutional provisions
in the “Law” no. 5/2004, p. 88 - showed that two elements can be used, in order to check whether a procedure
is judicial in character; these elements are in a close subsidiarity relationship. On the one hand, it is about the
competences expressly provided by law either in the sense that the procedure is administrative and judicial in
nature or in the sense that procedure is not judicial. Subsidiarily, under silence of the law, the legal nature of
the procedure is determined in relation to the features of the body before whom it is conducted and the
procedural specific elements. Thus, as a principle, we are facing jurisdiction and judicial proceedings when:
the authority is established by law; the respective body and its members are independent and impartial -
including not taking “the judge” (broadly) for the party; the authority is invested with full jurisdiction, in fact
and in law; the body has power to decide, and not just to issue an opinion; procedure is fair and shows
adversariality and publicity elements and reasonable time limit; the right to defense is observed; principle of
non reformatio in pejus , force of res judicata after the completion of any remedies at law; the binding nature
of the judicial act; and the possibility to perform the forced execution of the judicial act. Further, to be in the
presence of a judicial administrative procedure - see I. Alexandru M. Cruşan, S. Bucur, Administrative
Law, IInd ed. Lumina Lex Publishing House, Bucharest, 2003, p. 579: the trial procedure will take place in
front of specialized tribunals only within central and local public administration authorities, not including
other public authorities in this category.
7
Compared to the provisions provided for in Art. 257 para. (1) of the Ordinance
enshrining the Council's capacity as an administrative-judicial body, are also noted other
provisions within thereof which complete the legislature's will expressly mentioned in
this regard, as follows:
- art 256 “In order to settle disputes using the administrative-jurisdictional path, the
alleged prejudiced party is entitled to address the National Council for Claims
Settlement...”
- Art. 257 para. (3) “In its duties, the Council is subject only to the law and the
Council meetings are legally constituted in the presence of the majority of its members”.
- Art. 257 para. (4) “In terms of its decisions, the Council is independent and not
subordinated to the National Authority for Regulating and Monitoring Public
Procurement”.
- Art. 266 “The Council has jurisdiction to hear appeals filed in the course of the
award procedure through specialized panels...”
- Art. 269 “The appeals settlement proceedings shall be conducted whilst observing
the principles of legality, rapidity, adversariality and the right to defense”.
Above regulations shall be also corroborated with doctrinal considerations
concerning jurisdiction and administrative activities identifying the following as features
thereof2:
a) proceedings shall be conducted according to a mandatory procedure imperatively
provided by law. This procedure is similar to the proceedings for adopting Judgments;
b) judicial activity shall be based on adversariality, i.e. the ability of the parties to
produce evidence directly before the body settling the appeal;
c) the body settling the that appeal is independent and impartial in respect to the
parties in conflict. This condition is regarded as decisive for the judicial proceedings;
d) the judicial bodies entitled to settle appeals are a parallel judicial order, separate
from that of the Courts.
e) Judgments delivered by the administrative Courts or tribunals are administrative
and judicial documents (n.n.).
Regarding the above, we believe that features specific to administrative and judicial
activities can be found in the Council's duties. We are considering that the Council
judicial powers are expressly provided by law and the appeals settlement proceedings
shall be conducted whilst observing the principles of legality, rapidity, adversariality and
the right to defense before an independent and impartial body toward the parties in
conflict and isolated from the Courts at the same time.
2. Council's work raises many controversies, the constitutionality of all the rules
contained in Chapter 9 of Government Emergency Ordinance No.34/2006 being called
into question. In this respect, it was argued that the establishment of the National Council
for Claims Settlement and the jurisdiction conferred upon it by the Emergency Ordinance
violate the constitutional principles of organization and functioning of the public
1 M. I. Niculeasa, Public procurement legislation. Comments and explanations, C.H. Beck Publishing
House, Bucharest, 2007, p. 433.
2 Ibidem, p. 440.
8
administration in general, and the principle of local autonomy, in particular, concluding1:
for the first time in the Romanian legislation, “an administrative-judicial body” is
invested with observing the exercise of administrative tutelage and hierarchical control in
public procurement matter, regardless of the contracting authorities’ nature and
hierarchical level2.
In this context, we wish to emphasize the debates that took place in the Romanian
doctrine due to a regulation deemed, over the time, incoherent and brushy by a number of
authors. However, in order not to exceed the paper theme, we show that debates
concerning the legality of the Council’s judicial activity arise from the incomplete
manner in which, over time, the legislator has regulated the activity of this institution,
causing damage to key elements defining the judicial activity (activity that also includes
the administrative and judicial proceedings), whether of the Courts or other bodies having
jurisdiction, such as: lack of summoning the parties within mandatory administrative and
judicial proceedings; the ambiguous wording of G.E.O. no. 34/2006, which can lead to
arbitrariness in judicial activities3; the constitutionality of G.E.O. no. 34/2006 on the
establishment of the Council and its jurisdiction conferred upon it by the law, violating
the constitutional principles of organization and functioning of the public administration
in general, and the principle of local autonomy, in particular4.
As far as we are concerned, with regard to the manifest intention of the legislator and
the intrinsic features of these proceedings we believe, even in the presence of doctrinal
criticisms and observations, that the nature of special administrative jurisdiction of the
National Council for Claims Settlement is undoubtedly required. Being subjected to
judicial control, Council's jurisdiction activity is found in Art. 21 and 18 of the Romanian
Constitution as republished5; the parties’ right of appeal against decisions of this judicial
body before the competent Courts is not restricted.
3. Public procurement6, as we previously showed, exceeds 16% of the European
Union GDP and is one of the main directions the public resources are channeled towards;
1 G. Coca, Discussions regarding the National Council for Solving Appeals’ capacity of being
summoned as witness, in “The Law” no. 10/2008, p. 91. In this regard, the author of the thesis states: “to
deal with a “special administrative jurisdiction” as the Council work is intended to be, the following
conditions must be met: the administrative and judicial document must be issued by an administrative
authority, i.e. a body of state administration or local government (so not just any public authority); the
issuing authority should have powers to settle a dispute, therefore to be an administrative and judicial body;
dispute should be settled by summoning the parties (which is not happening in our case), under the
adversarial principle; the right to be assisted by a lawyer should be acknowledged to the parties (which is not
happening in reality). Failure to meet any of these conditions shall lead to other legal realities that exceed
the scope of the concept of special administrative jurisdiction (e.g. disciplinary commissions, etc ...)”.
2 See I. Nicola, Considerations on G.E.O. no. 34/2006 regarding the award of public procurement contracts,
of public works contracts and of services contracts, in “Journal of Public Law” no. 1/2007, p. 112-113.
3 I. Nicola, Considerations...op. cit., p. 115.
4 Ibidem, p. 112.
5 As amended by the Law revising the Constitution of Romania published in the Official Gazette of
Romania, Part I, no. 669 of 22 September 2003.
6 For an analysis in public procurement matter in the Romanian law see: C. M. Ctan, Public
procurement, Universul Juridic Publishing House, Bucharest, 2011.
9
this is why the National Authority for Regulating and Monitoring Public Procurement is
subordinated to the Government. Council's jurisdiction - a body independent of NARMPP
- as a form of administrative control in public procurement, where “public money” is
practically spent, appears in the allocation and use of public financial resources necessary
to ensure society’s overall development and functioning.
Financial and public nature of the administrative control in public procurement
matter can be also found in the provisions of G.E.O. no. 30/20061, designating the
Ministry of Public Finance as a specialized body of the central government responsible
for carrying out the “test function” procedures for the award of contracts subject to
legislation on the award of public procurement contracts, of public works concession
contracts and services concession contracts2.
The objective of the test / check function carried out by the Ministry of Public
Finance is to help ensure the compliance of the procedures developed for the award of
public procurement contracts, public works and services concession contracts and also of
the documents prepared under these procedures with legislation in the field. The Ministry
powers to fulfill the test / control function are referred to in Art. 4 of G.E.O. no. 30/2006
and concern:
a) tracking the proceedings carried out in connection with the award of contracts;
b) analysis of documents prepared by the contracting authority to award contracts;
c) drafting activity reports for each award procedure of public procurement contracts,
public works concession contracts and services concession contracts which was checked
by appointed monitors;
d) issuing advisory opinions in the event of inconsistencies in the application of
public procurement legislation.
Compared to the explicit provisions of G.E.O. no. 30/2006, the test / check function
of the procedures carried out for the award of public procurement contracts shall be
performed by observers appointed by the Ministry of Public Finance3. The checking
concerns public procurement stages subsequent to publication of the notice up to the
contract award and signing thereof. In extraordinary cases regulated by law allowing the
conclusion of the contract without prior publication of a contract notice, checking
concerns the stages of the procurement process since submission of the invitation to
negotiate and up to contract award and signing thereof. So as one can see, the test /
control function does not concern the already concluded procurement contracts’
performance manner.
1 G.E.O. no. 30/2006 regarding the test function for procedural issues related to the award of public
procurement contracts, of public works contracts and of services contracts. Published in the Official Gazette
of Romania, Part I, no. 365 of 26 April 2006.
2 See Art. 1 of G.E.O. no. 30/2006
3 According to Art. 4 para. (2) of G.E.O. no. 30/2006, the activity of the Ministry of Finance concerning
the compliance of the checking out function of the progress stages under the procedures for the award of
public procurement contracts is exercised centrally by a specialized unincorporated body, i.e. “The unit for
coordinating and checking public procurement”, hereinafter UCVPP and, at the local level, through
specialized bodies directly coordinated by UCVPP, at the general directorates of public finance level, called
test procurement departments “CVAP”. Civil servants within these structures are observers
10
Therefore, in the public procurement matter we can identify the existence of an ex-
ante public procurement administrative control conducted by a central government’s
specialized body - the Ministry of Public Finance (MFP) - having legal personality,
subordinated to the Government and carried out by observers appointed of this body’s
staff, and an administrative and judicial control performed by an independent body with
administrative-judicial activity which is attached to the General Secretariat of the
Government - The National Council for Claims Settlement. However, it should be noted
that the two forms of control have, in terms of legal nature, specialized control features1;
it is exercised by administrative bodies with specific control responsibilities.
Both forms of control, as evidenced by the above, concern issues targeting the
procedure prior to the award or procurement contract conclusion. However, the
administrative control performed by the PFM is subject to the value criteria set by GEO
no. 30/2006, while the administrative and judicial control exercised by the Council can
usually cover any public procurement procedure, the value aspect having no relevance.
In our opinion, the Ministry of Public Finance exercises an administrative control
that takes the form of preventive financial control which verifies the legality and
regularity of transactions on public funds in public procurement procedure, including the
award and signing of the agreement.
Preventive financial control2, as an attribute of the test function is performed by the
Ministry of Public Finance through its specialized structures at central and local level
which carry out the verification process for awarding contracts selectively, based on risk
analysis.
Administrative and judicial control is performed by the National Council for Claims
Settlement on the issues envisaged also by the preventive financial control, namely the
legality of transactions conducted on public funds in public procurement procedure,
including the award and signing of the public procurement contract. Consequently, the
control carried out by the Council is an administrative and judicial control that checks the
legality of how the proceedings shall be conducted before concluding the public
procurement contracts.
In relation to the above, it is clear that the dispute settlement proceedings before the
Council can be categorized as administrative and judicial - legislator’s will prevails,
despite the critical opinions expressed in the legal literature - which takes place before a
body having jurisdiction and issues administrative judicial documents throughout the
case settlement proceedings.
1 Depending on the legal nature and, respectively, the subordination of the specialized control bodies,
“specialized control” can be: a) control exercised by State inspections within ministries, or State
administration local bodies, b) control exercised by administrative bodies of a judicial nature throughout the
administrative remedies at law procedures, as provided by law, c) control exercised by especially constituted
bodies for control. See V. Vedinaş, Administrative Law, IIIrd edition, Universul Juridic Publishing House,
Bucharest, 2007, p. 126-12; A. Iorgovan, Administrative Law Treaty, vol II., 4th edition, All. Beck Publishing
House, Bucharest, 2005, p. 480.
2 For an analysis of preventive financial control, see: E. Blan, Financial Law, 3rd edition, All Beck
Publishing House, Bucharest, 2004, p. 297-303; V. Tabr, Public finance and financial control in local
government, C.H. Beck Publishing House, Bucharest, 2009, p. 187-193.
11
III. Nature of the appeal vesting the National Council for Claims Settlement.
Quasi-contentious appeal
Quasi-contentious appeal, a concept which is to be further analyzed, has many
similarities to the contentious appeal itself, making, as noted1, the boundary between the
two matters to be hard to find. In many cases it is difficult to know whether the authority
which gives a decision has or has not the nature of a genuine Court.
Both for prior administrative proceedings and quasi-contentious appeal the
application is sent to an authority that is not a genuine jurisdiction. While administrative
appeal is referred to the authority issuing the appealed against document or the
hierarchically superior body thereof and is settled subsequent to a procedure that does not
require a complex approach, such as before the contentious Court, quasi-contentious
appeal is usually addressed to specialized committees or bodies that may have both
administrative and quasi-judicial functions, not showing however the powers of genuine
Courts.
In Romanian positive law, after the enactment of Government Emergency Ordinance
no. 34/2006, the legislator used a solution different to the one imposed by the former
Government Emergency Ordinance no. 60/2001 on public procurement2 which
established administrative appeal as mandatory procedure prior to the proceedings before
the Court, in the form of complaint submitted to the contracting authority.
The novelty brought by the legislator on the legality control for the documents
considered to be illegal in public procurement matters, through Ordinance no. 34/2006,
was the remedy at law before a specialized body, the National Council for Claims
Settlement, with administrative-jurisdictional powers offered to the person considering
himself/herself prejudiced by such document.
The question at issue concerns the nature of the complaint before the National
Council for Claims Settlement; can it be regarded as quasi-contentious appeal or be seen
as a simple administrative appeal?
In considering the issues addressed must be mentioned the following:
1. Administrative law science makes a clear delimitation of the term civil matters
appeal in relation to the appeal in administrative matters.
Civil law appeals are viewed as an “extraordinary, common, reformer, non-
devolutive and unsuspensive enforceable remedy at law, through which the parties or the
Public Ministry call the higher competent Court to quash or to amend the lower Court's
Judgment issued without right of appeal or on appeal, or the Judgments of other judicial
bodies”3.
Appeal, as an administrative law concept, was defined4 in administrative literature as
“remedy at law or procedural way that creates the possibility to address the violation of
subjective rights and legitimate interests due to damage caused by the state
administration bodies”.
1 I. Alexandru, Treaty… op. cit., p. 653.
2 Published in the Official Gazette of Romania, Part I, no. 241 of 11 May 2001, was approved with
amendments by Law no. 212/2002 and was repealed expressly by G.E.O. no. 34/2006.
3 See S. Spinei, Appeals in civil proceedings, Hamangiu Publishing House, Bucharest, 2008, p. 12.
4 A. Iorgovan, Administrative Law Treaty, vol. I, Nemira Publishing House, 1996, p. 386
12
Therefore, it is necessary to distinguish between the notions of appeal in civil matters
compared to the significance the administrative law grants to this notion1. Appeal in
matters of administrative law is different from the appeal in civil procedural law due to
the delimitation of the control exercised by administrative bodies with or without judicial
powers and the control exercised by the Courts.
In another train of thoughts, a judicial appeal before Court may invalidate the
solutions delivered by an administrative body, both within the purely administrative
procedure and the administrative-jurisdictional one.
2. As already pointed out in the literature2, the phrases “prior administrative
procedure”, “prior claim”, “prior administrative appeal”, “prior claim”, “prior
administrative appeal” refer to the ADMINISTRATIVE APPEAL the individuals injured in
respect with a right or legitimate interest are required to exercise before the issuing
administrative authority or the hierarchical superior thereof before advancing proceedings
before the administrative contentious Court.
JUDICIAL APPEAL relates to the application by which contentious administrative
Courts are invested to settle a dispute.
We consider that the complaint brought under G.E.O. no. 34/2004 before the
National Council for Claims Settlement is also an APPEA, in the sense of the
administrative law doctrine; we will continue to analyze whether the conditions for
QUASI-CONTENTIOUS APPEAL are met or not.
3. The term “quasi-contentious appeal” also involves an etymological an analysis of
the three concepts composing thereof: “appeal”, “quasi” and “contentious”, as follows:
- “appeal” derives from the Latin “recursus” - remedy at law which calls a higher
Court to review the legality and validity of a non-final Judgment, for cancellation and
amendment thereof3.
- “quasi” is derived from the Latin “quasi” which means: half, approximately, about
almost4;
- “contentious” is derived from the Latin “contedere” (to fight). In Romanian
interwar administrative law, the word “contentious” began to be used to delimit the
judicial remedies at law (advanced against administrative documents and operations)
from the ordinary administrative appeals (advanced before the issuing administrative
body or the hierarchically superior thereof); this acceptation is also often used today.
The very phrase “quasi-contentious appeal” suggests that it is addressed to a Court,
namely a genuine jurisdiction, but whose settlement by the administrative body invested
1 The distinction confirms the argument that classifying one and the same legal reality in the light of the
categories pertaining to a particular branch of law does not exclude but, on the contrary, allows a special
classification within another branch of law. See A. Iorgovan, Considerations on a university course in S.C.J.
no. 3/1985, p. 255-256.
2 D.C. Dragoş, Administrative appeals and administrative proceedings, All Beck Publishing House,
Bucharest, 2001, p. 4.
3 Explanatory Dictionary of the Romanian language, Romanian Academy Publishing House, Bucharest,
1984, p. 788.
4 Idem, p. 225.
13
by law with jurisdiction, as quasi-contentious Court, complies with certain forms of
procedure specific to the dispute pending before a Court.
Thus, in the legal proceedings work there are: judicial jurisdictions and
administrative jurisdictions. In both forms of jurisdiction, the way the case was referred
to the judicial body takes the form of a remedy at law advanced before them. For
administrative jurisdiction, the remedy at law takes the form of a quasi-contentious
appeal, while for judicial jurisdiction the appeal is a remedy at law which requires a
higher Court to review the legality and solidity of a non-final Judgment, for cancellation
or amendment thereof. Also, if the appeal is referred to an administrative body (the
authority issuing the document or the superior authority) without judicial powers, we are
dealing with an administrative appeal.
Considering those above, we believe that the phrases: quasi-contentious appeal,
administrative and judicial appeals, administrative and judicial complaint, administrative
and judicial remedy at law, complaint lodged with an administrative-judicial body,
concern the appeal - in the sense given by the administrative law doctrine - advanced by
the person injured, in terms of a right or legitimate interest, by a public authority, a body
invested by law with administrative-judicial powers.
It is noted, however, that quasi-contentious appeal is, in many cases, difficult to
delimit compared with the administrative or judicial appeal, due to the fact that it presents
joint elements characterizing both forms of control. Without exhaustively address the
differences between the three forms of appeal, one can notice that quasi-contentious
appeal before an administrative-judicial body is delimited in relation to the other two by
features derived from the special regulation the legislator assigns to this procedure.
In terms of the analysis carried out in this paper, we notice that, for the appeal
referred to the National Council for Claims Settlement (“the claim”), the quasi-
contentious appeal features are present.
a. The appeal referred to the National Council for Claims Settlement (C.N.S.C.) as
quasi-contentious appeal before n administrative-judicial body is different from the
administrative appeal as procedure prior to the referral to the contentious administrative
Court, as follows1:
- settling the administrative appeal lies with the body issuing the document or its
hierarchically superior body, while in case of claim, the resolution lies with a
Government body expressly established by law to exercise judicial activities.
- solution for the administrative appeal requires addressing both legal issues and
those of opportunity, while controlling performed subsequent to the claim
investigates only the legality of problems on Council’s trial.
- acts settling administrative appeals are ordinary administrative acts which the
issuing authority may cancel, while the acts resolving the claim are administrative
judicial acts.
1 To distinguish between work carried out by certain sta te administration bodies to settle hierarchical appeals
and the administrative-judicial activities carried out by certain state administration bodies, see P. Stainov, Special
courts in the state administration, Scientific Publishing House, Bucharest, 1961, p. 141-142; A. Iorgovan,
Administrative Law Treaty, vol II., 4th edition, C.H. Beck Publishing House, Bucharest, 2005, p. 494.
14
- administrative appeal is a mandatory preliminary procedure prior to the referral
to the contentious Court, while the appeal before an administrative and judicial
body , C.N.S.C., is optional.
b. The appeal (claim) referred to the National Council for Claims Settlement is
different from the judicial appeal referred to Courts, as follows:
- quasi-contentious appeal is referred to a State administration body invested with
judicial powers, while judicial appeal is referred to the Court.
- Although the claim settlement proceedings before the Council reveal commonalities
with the proceedings before the Court, the dispute in Court is a much broader procedure,
involving longer settlement periods.
- quasi-contentious appeal referred to the National Council for Claims Settlement
relates to matters falling within the competence of that body, strictly provided by special
law while the appeal judicial covers a wide range of disputes.
It should be noted that both the decision issued by the National Council for Claims
Settlement following the quasi-contentious appeal settlement and the solution given by
the Court - the district Court the contracting authority is registered in - subsequent to the
judicial appeal is subject of an appeal referred to the same Court1 - the Court of appeal’s
contentious administrative and fiscal matters section in whose jurisdiction the
contracting authority is registered.
Consequently, the Council's decision is a solution given after analyzing the merits of
the dispute and the remedy at law against the decision shall be settled in accordance with
Art. 3041 of the Code of Civil Procedure2 and G.E.O. no. 34/2006 before the Court. The
Court Judgment following the settlement of the merits is likely to be appealed to a higher
Court with jurisdiction to also judge the remedy at law against the Council's decision.
Therefore, the remedy at law against the Council's decision or Judgment rendered
following the Court’s Judgment on the merits of the dispute is an appeal referred to the
competent Courts of law. In other words, both cases have two levels of jurisdiction: first,
subject to the claimant’s option which will address the action brought before the Council
or the Court of law and the second - Appeal - only to the Court where can be appealed
against both the Council's decision and the Court sentence.
• References
Alexander, I., Public Administration Treaty, Universul Juridic Publishing House,
Bucharest, 2008, p. 652-653.
1 Art. 283 (1) of G.E.O. no. 34/2006: Competent court to settle the complaint against the decision of the
Council is the court of appeal, the contentious administrative and fiscal matters section in whose jurisdiction
the contracting authority is registered. Except complaints appealing fines, the National Council for Claims
Settlement is not a party to the case.
2 According to Art. 3041 of the Code of Civil Procedure, the appeal against a decision which, by law,
can not be subject to an appeal, shall not limited to the grounds for quashing referred to in Art. 304 of the
Code of Civil Procedure; the court may hear the case in all respects.
15
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16
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