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

AuthorGina Livioara Goga
The European Citizen and Public Administration
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:
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT