The Settlement of the Exception of Illegality according to the Latest Regulations in the Matter of Administrative Contentious

• Author: Gina Livioara Goga
• Pages: 185-188

The European Citizen and Public Administration

185

The Settlement of the Exception of Illegality according to the Latest

Regulations in the Matter of Administrative Contentious

Gina Livioara Goga1

Abstract: It has been already held in jurisprudence, that the exceptions of illegality may be invoked within

processes of any kind, by judging these incidents by the courts vested with the trial of the main requests. Reason

for the amendment of Art. 4 of Law no. 554/2004 was th at of relieving the administrative courts by prosecution

of exception of illegality raised following the litigations of any kind by transferring th eir jurisdiction to the courts

vested with their main demands.

Keywords: jurisprudence; administrative courts; jurisdiction

One of the fundamental principles of administrative law is the principle of legality of the work carried

out by public administration bodies, enshrined in art. 1, par. (5) of revised Romanian Constitution.

According to constitutional provisions, legislation and jurisprudence of the Court of Justice of the

European Union, of Law no. 554/2004, of administrative litigation and under the provisions of

Emergency Ordinance no. 34/2006 on the award of public acquisition contracts, public works

concession contracts and service concession contracts, the non-respect of general principles of

administrative law by public authorities draw nullity sanction of administrative acts.

In a previous decision, the High Court of Cassation and Justice held that the plea of illegality is a

means of defense, an indirect way of controlling the legality of an administrative act, which can only

be used in a trial pending, regardless of its nature.

According to recent jurisprudence of the Constitutional Court regarding dispositions of art. 4 of Law

no. 554/2004, this regulation "establishes a procedural means by which the interested party may

challenge the legality of a unilateral administrative action with individual nature of which the adverse

party intends to rely to prove their claims or to defend or assert a right.

The criticized text of law is consistent with the provisions of art. 126 par. (6) of the Basic Law, which

guarantees the control of administrative acts within the administrative court as through the plea of

illegality even this is done in practice, expanding the possibility of control also over acts whose legality

was not contested on the main track.

The Constitutional Court 2 explains that, in the absence of any distinction in art. 126 par. (6) first

sentence of the Constitution, this concept refers equally both to the control of legality of administrative

1 Senior Lecturer, PhD, Faculty of Law, “Danubius” Un iversity of Galati, Romania, Address: 3 Galati Blvd, 800654 Galati,

Romania. Tel.: +40.372.361.102, fax: 40.372.361.290, Corresponding author: ginagoga@univ-danubius.ro.

2 Constitutional Court Decision no. 267/2014 regarding the reject of plea of unconstitutionality of art. 4 para. (2) and (3) of

Administrative Contentious Law no. 554/2004 published in the Official Gazette, Part I no. 538 of 21.07.2014.