Theoretical and Practical Aspects Regarding the Unlawfulness Plea of the Administrative Acts in the Municipal Law and Community Law

Author:Doina Udrescu
Position:Dunarea de Jos University of Galati
Theoretical and Practical Aspects Regarding the Unlawfulness Plea
of the Administrative Acts in the Municipal Law and Community
Doina Udrescu
„Dunărea de Jos” University of Galati
Abstract: With respect to the Administrative Law no. 554/2004, as a mended by Law no. 262/2007, the legal
establishment of the unlawfulness plea renders the specialized administrative courts the full jurisdiction on
the control of the administrative act legality. The unlawfulness plea is generally appl ied and it can be invoked
in any civil, criminal or commercial case is the exclusive task of the administrative court.
Key words: administrative act, unlawfulness plea, annulment actions, administrative, legitimate rights,
legitimate interest.
The unlawfulness plea represents a means of defence whereby, during a pending case for other grounds
than the invalidity of the administrative act, one of the parties, threatened with the application of such an
illegal act, defences itself by invoking this fault and requests that the act should not be considered when
settling the case.
The unlawfulness plea is regulated by the provisions of art. 4. of the Law no. 554/2004. According to the
latest amendments made by Law no. 262 from July 19 2007 art. 4 paragraph 1 of the law states that the
legality of an unilateral administrative act of individual nature, irrespective of the issuance date of the
same, may be investigated at any time during a case, by plea, ex officio or at the request of the
concerned party.
Administrative acts in relation to which the plea can be invoked
According to the current regulation, at present the administrative acts of individual nature exclusively can
be subject to the control of the administrative court. In case of administrative acts of normative nature, the
will of the legislator was that the same could not make the scope of the unlawfulness plea. The solution
adopted by the legislator is intended to result in the settlement with celerity of the causes and within a
reasonable time, thus being in agreement with the provisions of art. 6 CEDO. Moreover, the solution is
also justified based on the provisions of art.11 paragraph 4 of the Law 554/2004 based on which the
administrative acts of normative nature deemed unlawful can be objected at any time. Pr evious to this
amendment, the legal practise was not unitary, several courts considering that the unlawfulness plea can
also be invoked in case of normative acts, other courts only in case of administrative acts of individual
nature. The High Court of Justice and Cassation by decision no. 554/2006, in order to unify the non-
unitary practise, stated that the unlawfulness plea invoked with respect to an unilateral administrative act
of normative nature is acceptable since the legislator does not make any distinction between the
individual and the normative administrative acts.
We estimate t hat the unlawfulness plea can only be invoked with respect to the acts that can also make
the scope of an annulment action before the administrative courts. Consequently, the two dismissals
provided by art. 126 paragraph 6 thesis 1 of the Constitution, the administrative acts issued in the
relations with the Parliament and the administrative acts of military rule represent dismissals for the
unlawfulness plea as well. Thus, we consider that the statement of certain theoreticians based on which
the existence of the dismissals does not represent an impediment for the invocation of the unlawfulness
plea cannot be accepted, since it is not an act annulment but a means of defence to make the act non-
operating in a certain case and with respect to a certain party. For the support of the first viewpoint we
share, the principle of establishment symmetry exists as well, according to which for identical cases
identical solutions are applied (idem ratio, idem jus), principle resulting in the conclusion that it is
unacceptable that the administrative courts could not give a decision by a direct action on the legality of
an administrative act included in the dismissals but could do the same by a plea. Therefore, the contrary

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