The representation of the administrative and territorial divisions before the court of law

• Author: Elena Emilia ?tefan
• Position: Lecturer PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (email: stefanelena@gmail.com).
• Pages: 131-138

LESIJ NO. XXIII, VOL. 2/2016

THE REPRESENTATION OF THE ADMINISTRATIVE AND

TERRITORIAL DIVISIONS BEFORE THE COURT OF LAW

Elena Emilia TEFAN*

Abstract

The appropriate establishment of the loca l a uthority entitled to have the capacity of legal

representa tive before the courts of la w, when an administrative and territoria l division is par ty to a

case, ra ised many problems within the judicial practice. Not often, the motion to dismiss on grounds of

lack of passive legal standing of the administrative and territor ial divisions in the capacity of defendant

in a dispute, was claimed or substantiated. This is why, this study a ims to deter mine, in ter ms of the

legislation in force, the local government authorities which ar e entitled to have the capacity of legal

representa tive of the administrative and terr itorial divisions within a contentious administrative

dispute. In order to emphasize the importance of the appr opriate construction of the lega l texts which

regulate the subject in question, in the end of this study, we will expose a selection of case stu dies of

the national ca se law.

Keywords: Constitution, local government authorities, the motion to dismiss on grounds of lack

of passive legal standing, contentious a dministrative, the Constitutional Court of Romania.

1. Introduction

During the interwar period, the

administrative law was the discipline which:

„covered the activity of an authority. The

state is a community sit uated on a territory

consisting of governors and governed

persons

1

.”ă Along with the same lines , in

what concerns the activity of the local

government, deemed in the same time as an

administrative authority, it was shown that it

fulfills its duties b y means of certain bodies

consisting of natural persons or groups of

* Lecturer PhD, Faculty of Law, “NicolaeăTitulescu”ăUniversityăofăBucharestă(email:ăstefanelena@gmail.com).

1

Paul Negulescu, Trata t de dr ept administrativ.Pr incipii generale, vol.I, ed. IV, Marvan Publishing House,

Bucharest, 1934, p.38.

2

Anibal Teodorescu, Tra tat de drept administrativ, vol.I, ed. V, Institutul de Arte Grafice Eminescu S.A.,

Bucharest, 1929, p.150.

3

For a broad analysis of lawfulness principle, see Elena Anghel, The lawfulness principle, in CKS-eBook 2010,

vol. I, Pro Universitaria Publishing House, Bucharest, ISSN 2068-779.

4

SeeăLauraă Lazr,ă Abuzul de poziie dominant. Evoluii i perspective în dreptul european i naional al

concurenei, C.H.Beck Publishing House, Bucharest, 2013, 272 p.

natural persons, such as: ministers, prefects,

police commissioners, county councils,

town councils etc.

2

The national legislation provides that

the activity of the local government

authorities is based on a series of principles

of which the lawfulness p rinciple is

distinguished as bein g the base of the

organization of state activity in ge neral

3

.

While i n the field o f private law, concepts

such as economic freedom, competition

4

, the

principle o f mutual consent, etc prevail,

these concepts are unknown for the public

law. Principle s such as loca l autonomy,

decentralization, public services