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Romania (2007)

 
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  • INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)

    • 1. Main dates in the evolution of the review of administrative acts

      The separation principle has its origins in the Organic Rules (1831, 1832), and has been afterwards established by the Developing Statute of the Paris Convention (1864) as well as the provisions of the Constitutions from 1866, 1923, 1938. Started for the first time in Romania by the Law for founding the State Council from 11th of February 1864, the Law on administrative disputes had a remarkable historical evolution, with changes from one political regime to another, determined by the changes that have interfered in the history of our country.

      The legislation established, initially, the system of the special administrative jurisdiction, then the system of the common competent courts and in matter of administrative disputes, with certain peculiarities in a period or another, but it also mentioned the judge administrator system. This explains why, in the administrative doctrine, in the substantiation of the notion administrative dispute there could not been made an abstraction concerning the aspects regarding the activity of the administrative body with jurisdictional character.

      After the Revolution from December 1989, the enactment of some special bills (Law no. 29/1990, Law no. 554/2004, Law no. 262/2007) had the role of making from the administrative dispute an effective way to control the legality of the activity of the public administration (executive authority) by the specialized judicial court – administrative and fiscal disputes departments of the High Court of Cassation and Justice, administrative and fiscal disputes department of the Court of Appeals and of the tribunals (fiscal administrative tribunals in future) courts that are part of the judicial system. Hereinafter the references to Law no.554/2004, as further amended, mainly through Law no.262/2007 are as to the “Law on administrative disputes”.

    • 2. Purpose of the review of administrative acts

      From the perspective of the constitutional provisions regarding the judicial court control over the public administration on the whole, the judicial courts has in view to rigorously carry out and make sure that the laws that provide for and give expression to the public interest are properly applied .

      According to the competences established by the organic law, the court for administrative disputes solve the litigations where at least one of the parties represents a public authority and the conflict had come out either by issuing or concluding an administrative act, or by not solving in legal time or by giving an unjustified refusal for solving a petition regarding a right or a legitimate interest.

      The administrative disputes court, as the case may be, is competent to suspend, to annul totally or partially the administrative act, and/or to oblige the public authority to issue an administrative act, or to issue another one, to perform a certain administrative operation, under the sanction of a penalty applicable for each day of delay to the forced party, being able to decide over the material and moral damages caused, if these have been asked to.

      In some cases the court is competent to pronounce itself in what concerns the legality of administrative operations that were the basis of issuing the act submitted to the judgment.

      When the object of the action in administrative disputes consists in an administrative contract, in accordance with the state of fact, the court could dispose the annulment of this one, totally or partially, force the public authority to conclude the contract where the claimant has the right to impose one of the party to perform a certain duty, to supply the agreement of one party, when the public interest asks to.

      In all the situations, the court can establish, at the request of the interested party, an execution term as well as a fine for non-execution.

    • 3. Definition of an administrative authority

      The public administration, seen as a whole, presents itself as a systematized ensemble of structured bodies considering their material and territorial competence. The central public administration is formed by the Government, Ministries and other specialized bodies subordinated to the Government or the ministries, as well as the autonomous administrative authorities. The local public administration is formed of the authorities organized at the level of the territorial administrative unities (villages, cities, towns and districts).

    • 4. Classification of administrative acts

      The administrative acts are of three kinds: authority administrative acts, administration administrative acts and administrative acts with jurisdictional character.

      The authority administrative act is the unilateral act with individual or normative character issued by a public authority, in form of public power, in order to organize the execution of the law or the concretely execution of the law, which begins, modifies or ends judicial reports.

      The administration administrative act is the judicial act concluded by the public authorities for exploitation and development of the public property with the people of private law.

      The administrative contracts are included in this category.

      The jurisdictional administrative act is the act issued by an administrative authority empowered by the organic law with competences of special administrative jurisdiction.

  • I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS

    • A. COMPETENT BODIES

      • 5. Non-judicial bodies competent to review administrative acts

        The control of administrative acts are exercised, according to the law, by the administrative disputes court, by the judicial courts of common law, as well as by administrative authorities that have, according to the organic law, the competence to solve a conflict concerning an administrative act following the procedure of a special administrative jurisdiction, preliminary to exercising the judicial action in administrative court.

      • 6. Organization of the court system and courts competent to hear disputes concerning acts of administration

        In Romania, the justice is realized through the High Court of Cassation and Justice and through the other courts, respectively: the Courts of Appeal, the Tribunals, the Specialized tribunals and the First Level courts (called “ judecatorii ”; hereinafter also called law court), that also have competence, according to the law, in matters of administrative disputes.

        At the level of the High Court of Cassation and Justice several departments are organized , such as the Civil and Intellectual Property department, the Criminal department, the Commercial department and the Administrative and Fiscal disputes department, the Joint departments as well as the 9 judges panel.

        Within the Court of Appeals, as well as within the tribunals, there are separated departments or specialized panels for civil causes, criminal causes, commercial causes, causes concerning minors and family, causes of administrative and fiscal disputes, causes regarding work and social insurance conflicts and in comparison with the nature and the number of causes, maritime and fluvial departments or for other fields.

        Within the First Level courts there are specialized panels for the administrative disputes.

        With regard to the administrative and fiscal disputes the Romanian law provides two degrees of appeal (recourse) .

        In comparison with the position of the public authority that issued the administrative act attacked in the hierarchy of the public administrative bodies, as well as with the value of the fiscal debts, and at a first analysis, the administrative – fiscal tribunals, or as the case indicates, the administrative and fiscal dispute departments of the Courts of Appeals are competent to judge the administrative court disputes. The appeals exercised against the decisions pronounced by the administrative – fiscal tribunals are judged by the administrative and fiscal disputes department of the Court of Appeals and the appeals declared against the decisions pronounced by the administrative and fiscal disputes departments of the Court of Appeals are in the competence of the administrative and fiscal department within the High Court of Cassation and Justice.

        Only in some cases, the law expressly provides for just one degree of appeal, highlighting that the decision of the first court is irrevocable or settling a single way of appeal against the administrative act.

    • B. RULES GOVERNING THE COMPETENT BODIES

      • 7. Origin of rules delimiting the competence of ordinary courts in the review of administrative acts

        The rules that determine the competences of the common law courts are stipulated in the Civil procedure code, the Criminal procedure code, as well as in the special laws, the different competences of the administrative disputes court are generally stipulated in the constitution and regulated by the Law of administrative disputes, as well as by other special laws.

        The competence conflicts between the courts are solved according to the general rules stipulated in the Civil procedure code and with these regulations the ordinary law regulating the administrative disputes is completed.

      • 8. Existence and origins of specific rules related to the competence and duties of the administrative courts or tribunals

        The Romanian Constitution stipulates that the administrative jurisdictions are optional and free of charge.

        The Constitution acknowledges as well the jurisdictional functions of the Superior Council of Magistracy which acts as a court, through all its departments, only in the field of the disciplinary responsibility of the judges and the prosecutors according to the procedure established by its organic law. Its decisions approved and issued following such attributions can be appealed before the High Court of Cassation and Justice.

        Through organic laws, certain administrative authorities have attributions of special administrative jurisdiction, for example the National Council of Solving the Appeals that functions within the National Regulatory and Monitoring Authority in the field of Public Procurement.

        The jurisdictional administrative procedure is preliminary to the judicial action and is based on law general principles, respectively that of contradictorily, the guarantee of the defense right and of the independence of the jurisdictional – administrative activity.

        The issued jurisdictional – administrative acts are submitted to the judicial control of the competent court for administrative disputes.

    • C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES

    • D. JUDGES

      • 11. Status of judges who review administrative acts

        The judges ruling upon the administrative court cases have the same statute and the same professional background as the other judges from the justice system, the judge function being incompatible with any other public or private functions except for the teaching function from the higher education and those of training within the National Institute of Magistracy and the National School of Trial Clerks.

      • 12. Recruitment of judges in charge of review of administrative acts

        See answer from point 13 and 14.

      • 13. Professional training of judges

        The judges’ admission in the Magistracy is usually made by contest, based on and taking into consideration various criteria such as the professional competence, the aptitudes and the good reputation and is realized, as the initial professional training of the judges, within the National Institute of Magistracy, with the approval of the Superior Council of Magistracy.

        National Institute of Magistracy organizes continuous training programs dedicated to the magistrates, judges and prosecutors in function from all courts.

      • 14. Promotion of judges

        After graduating the National Institute of Magistracy, the judges can be appointed probationer judges only at the first level court, having a one year probation period, after which they must take a capacity examination. Upon such the promotion they are appointed, by the president of Romania, at the proposal of the Superior Council of Magistracy and they become irremovable.

        The judges promotion from one level court to another is made only by national contest organized at national level to the limit of the vacant jobs existing at tribunals and court of appeals. Judges that fulfill certain conditions can participate to these contests. The legal conditions are the quality of their professional activity and at least some years of length service, as follows: 5 years of length service as a judge or prosecutor for the promotion as a tribunal judge, 6 years of length service as a judge or prosecutor for the function as a judge at the court of appeals and 12 years of length service as a judge or prosecutor, from which the last 2 years in the position of judge at tribunals or court of appeals for the promotion as a judge at the High Court of Cassation and Justice.

        The appointment on the leading positions within the courts is made by contest or examination, for a period of 3 years, with the possibility of reinvestment only once, with the condition of fulfilling some length service conditions and professional competence.

      • 15. Professional mobility of judges

        The judges are irremovable and can be moved by delegation, transfer or promotion to another instance, only with their consent.

        Taking into consideration their personal options, with the condition to pass some exams or contests and to the limit of the vacant jobs, the judges can occupy other positions in magistracy, respectively that of attorney or assistant of judge at the High Court of Cassation and Justice.

    • E. ROLE OF THE COMPETENT BODIES

      • 16. Available kinds of recourse against administrative acts

        The person injured in a right acknowledged by law or in a legitimate interest, by an unilateral administrative act, unsatisfied by the answer received at the preliminary complaint or the fact that he haven’t received an answer in the legal time period stipulated, can notify the competent administrative disputes court, to request for the annulment of the document, totally or partially, for the coverage of the damage caused and eventually, repairs for moral damages. The competent administrative disputes court also be requested to solve the complaints of the individuals that consider themselves injured by non receiving from the administrative body a solution in the legal time period or by receiving an unjustified refusal of solving a petition, as well as by the administration refuse to effectuate a certain necessary administrative operation for the exercise or for the protection of the right or of his legitimate interest.

        The court which is in charge of solving claims having such an object, can, as the case indicates, annul, totally or partially, the administrative act, force the public authority to issue an administrative act, to issue a certificate or to effectuate an administrative operation, being able to pronounce concerning the legality of administrative operations that stood at the base of issuing the act submitted to trial, deciding over the material and moral damages caused, if these have been requested for.

        When the object of the action in administrative disputes consists in an administrative contract, the court can annul it, totally or partially, or can force the public authority to conclude the contract, can impose to one of the parties the fulfillment of a certain obligation or, anyway, can supply the consent of one of the parties, when the public interest requires so.

      • 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty

        Independently from the procedure stipulated in the article 234 of the EU Treaty, the administrative dispute court in front of which it is raise, either by the parties or ex officio, an exception of non-constitutionality of a legal provision that is related to and of which depends the merits of the case, then the court must request to the Constitutional Court to solve such exemption and to pronounce a decision in this respect and until that moment the main trial is suspended.

        At the same time according to the article 4 from the Law of administrative disputes, modified, whenever it is needed, in front of a civil or commercial court it is raised, directly or on the request of the interested party, an exception of illegality of an unilateral administrative act with individual character, the court , if establishes that the solution of the case on the merits depends on legality of respective administrative act, it will ask the competent administrative disputes court by motivated conclusion, to solve that exception of illegality suspending the case . Such interim procedure of requesting to the competent administrative disputes court to pronounce a decision on the exception of illegality is not separately submitted to any way of appeal rejected but it can be appealed together with the decision on the merits.

      • 18. Advisory functions of the competent bodies

        According to the constitutional principle concerning the power separation within the state, respectively the separation among the judicial, legislative and executive power, the judges do not have advisory functions. The judge’s position is not compatible with any other public or private positions, except for the teaching positions within the high education system.

        According to the law, at the end of each year, the judges from the High Court of Cassation and Justice, within the United Departments, establish the situations where the improvement of the legislation is necessary and inform the minister of justice about the amendment recommendations.

        The president of the High Court of Cassation and Justice can allow the judges to inform themselves, at the court headquarter, that the law has been carried out correctly, informing the High Court of Cassation and Justice about the case law, and to establish situations that justify recommendations of improving the legislation.

      • 19. Organization of the judicial and advisory functions of the competent bodies

        See answer from question no.18

    • F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES

      • 20. Role of the supreme courts in ensuring the uniform application and interpretation of law

        Article 126 in the Romanian Constitution stipulates that the High Court of Cassation and Justice ensure the interpretation and the application of the law by the other judicial courts, according to its competence.

        According to the law concerning the judicial organization, if a department within the High Court of Cassation and Justice considers necessary to reconsider its own case law, it interrupts the trial and inform the United Departments of the High Court of Cassation and Justice that shall rule upon that with the legal summon of the parties from the file that trial was interrupted and shall be resumed after the pronouncement of the United Departments over the intimation regarding the changing of the case law.

        In order to ensure the coherent interpretation and application of the law over the entire Romanian territory, the general prosecutor of the Prosecutor’s office attach to the High Court of Cassation and Justice, internally, or on the minister of justice’s request as well as the leading councils of the court of appeals have the right to ask the High Court of Cassation and Justice to pronounce decisions concerning the law issues that have been solved differently by the judicial courts. The solutions decided by the United Departments of the High Court of Cassation and Justice, are published in the Official Gazette of Romania, are compulsory for all the courts but have no impact/effect over the decisions already pronounced and neither with regard to the situation of the parties involved in those past cases.

  • II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS

    • A. ACCESS TO JUSTICE

      • 21. Preconditions of access to the courts

        According to the Romanian law, before applying to the competent administrative disputes court, the party that considers itself injured regarding a right or a legitimate interest by an administrative act, has to request to the issuing authority the withdrawal of respective act, totally or partially, within 30 days from the date of the act communication. Under certain circumstances and only in case of the unilateral administrative acts, the preliminary complaint may be filed even after this time period but within no more than 6 months from the issuing date of the act. The complaint may be as well applied to the superior body in the administrative hierarchical order, if such exists. These provisions are applicable also in the case when the special law stipulates jurisdictional administrative procedure but the party has not chosen this.

        Regarding the cases whose object consists in administrative contracts, the preliminary complaint signifies the conciliation procedure applied n the case of commercial disputes, therefore the dispositions from the code of civil procedure that regulates the respective procedure are adequately applied.

        According to the law, the preliminary procedure in case of the actions introduced by the prefect, the Ombudsman, the National Agency for Civil Servants or by those who are in charge of the petitions of the injured persons by decrees or dispositions generated by decrees and also in the case of invoking an illegality exception are not compulsory.

        At the same time the case law has established that the preliminary proceeding is imposed by the law only in case of the actions regarding the annulment of an administrative act and not in the case of the actions founded on the administration silence or on the unjustified refusal of solving the petition, when the action might be brought directly before the administrative disputes court.

      • 22. Right to bring a case before the court

        The law on administrative disputes stipulates that any person/individual who considers itself injured on one if its right or on a legitimate interest, by an administrative act or by not solving a petition, in a legal period of time, can ask the competent court of administrative disputes to annul respective act, to recognize the right claimed or the legitimate interest and therefore to also repair the damage that caused to him. The legitimate interest can be private and public as well. The person injured by an administrative act with individual character, addressed to another person can also apply to the court of administrative disputes under same conditions.

        Under the conditions stipulated in the law of administrative disputes, the actions can be introduced also by the Public Ministry, the prefect, the Ombudsman, the National Agency for Civil Servants or by any other injured person regarding a right or when a legitimate interest was injured.

      • 23. Admissibility conditions

        According to the law, the injured person, defined as being any individual or a legal entity or group of individuals, holders of some subjective rights or private legitimate interests, must prove either an injured right, for instance a right of those fundamental rights stipulated in the Constitution or in the law, or to have a legitimate interest. The legitimate interest that may be public or private, signify the possibility of requiring a certain behavior in the consideration of realizing a future and predictable subjective right, prefigured.

      • 24. Time limits to apply to the courts

        The court claims by which the annulment of an individual administrative act is requested or the recognition of a right required and the coverage of the damages caused can be registered with the competent court within 6 months, term that starts running from different moments, as follows: (i) from the date of receiving the answer to the preliminary complaint, or as the case indicates, the date when the refusal of solving the petition, considered unjustified, was communicated, or (ii) from the date when the legal term of solving the petition without exceeding the limit of 1 year expired, or (iii) from the date of finishing the official report of closing the conciliation procedure regarding administrative contracts. Regarding the unilateral administrative act, the law stipulates that in case of justified reasons, the claim can be registered after the 6 months term, but not later than 1 year from the issuing date of the administrative act.

      • 25. Administrative acts excluded from judicial review

        In the present Law on administrative disputes, it is stipulated that the administrative documents of the public authorities regarding their relation with the Parliament, the command acts with military character, as well as the administrative documents where for their modification or abrogation is stipulated another judicial proceeding by organic law, are not submitted to the control of the administrative court. At the same time it is strictly stipulated that the administrative documents issued for the appliance of the regime of state of siege or of that of emergency, those that concern the defendence and national security or those issued for the re-establishment of the public order, as well as for the elimination of the consequences of the natural calamities, infectious deseases and epizooties can be challenged in front of the administrative court only for the power abuse.

      • 26. Screening procedures

        Present reglementation does not provide for any screening procedure of the appeals. All the petitions of appeal registered are distributed on a random basis with the use of specific computer programme, to the trial panels organized at the level of the courts.

      • 27. Form of application

        According to the code of civil procedure with which the provisions of the Law on administrative disputes is completed, court claim (action), drawn up in written, in Romanian language, must contain the name and the residence or the headquarters of the parties, for the legal entities is necessary to be indicated the registration number at the companies register or the entry number from the legal entities register, the fiscal code and the bank account, the name and the possition of that who represents the party in the process, the object of the petition and its value, the real reasons on which the claims are based and the evidence on which relies each claim, and the certified copies of the convincing documents and of course the signature will be attached at the claim.

        There are no compulsory provisions with regard to the form of the claim, that can be hand written or typed, the legal existence already mentioned aiming the signature of the court claim either by the party himself or by mandatary.

      • 28. Possibility of bringing proceedings via information technologies

        Under the current legal proceedings , it is not possible to register a court claim sent via internet, in a dematerialized form.

      • 29. Court fees

        The actions formulated on the grounds of the Law on administrative disputes are submitted to the stamp duty specific to the actions from the common civil law, and the stamp duty must be paid in advance. The legal actions that have more claims with different finality are taxed separately for each of these, considering their nature, except the cases when the law stipulates differently. If the tax has not been paid in the period of time specified by the law, the concerned party which usually is the claimant, is informed about the payment of the amount owed until the hearing date established. Failure to comply with such duty is penalized with the annulment of the action or the petition. Based on special regulations or on the grounds of some special rules, some public authorities and/ or individuals are exempted from the stamp duties.

      • 30. Compulsory representation

        In the causes of administrative disputes the defense or the assistance of the parties by a lawyer is not compulsory in none of the trial stages. The parties can present themselves unassisted in front of the court, they can write themselves the petitions and they can present their oral conclusions, without being compulsory the assistance or the representation of a counsel for the defense.

      • 31. Legal aid

        Upon the request of the persons who can not afford the expenses of a trial, the court can grant free judicial assistance, that means exemptions, reductions, spread out payments or reprieves for the payment of the judicial stamp duties and the bails as well as the defense or the free assistance of a lawyer appointed by the lawyer bar.

        The free judicial assistance may be may be required, totally or partially, whenever during the trial.

      • 32. Fine for abusive or unjustified applications

        The Law on the administrative disputes does not stipulate such penalties. Under the conditions stipulated in the code of civil procedure the trial expenses are granted, only on request, to the party that obtained a favorable decision gained the day, these being covered by the opposite party, that lost the case. The grounds of granting these expenses that might be solicited also by means of a separate action are based on the concept of trial fault.

    • B. MAIN TRIAL

      • 33. Fundamental principles of the main trial

        The fundamental principles applicable on solving the administrative litigations are not mentioned in the content of the Law on administrative disputes, being stipulated by the Constitution, by the Law regarding the judicial organization and by the Code of civil procedure, the provisions of these ones being attached to the special administrative law, to the extent these are compatible with the character of the power reports that characterize the administrative field. The compatibility of the appliance of the norms of civil procedure is established by the court, when solving a case.

        According to the Constitution, to the Code of civil procedure and to the Law regarding the judicial organization, the civil process is governed by the following fundamental principles: (i) legality principle; (ii) the principle of the judge independence; (iii) the principle of equality of the parties in front of the justice; (iv) the principle of the free access to the justice; (v) the principle of the right to a fair trial and to solve the causes in a reasonable period of time; (vi) the principle of contradiction; (vii) the principle of the right to defense; (viii) the principle of the active role of the judge; (ix) the principle of availability; (x) the principle of the publicity and of the oral debates.

        These principles have their source in the intern law which has implemented the requirements of the European law, generally, as well as those of the article 6 point 1 from the European Convention of the Human Rights, in particularly.

        As a special rule, the Law on administrative disputes stipulates that the claims addressed to the courts are judged urgently in public session (article 17 line (1) from the Law no. 554/ 2004).

        The legal actions addressed to the court, whether it is a principal court claim or an incidental one, have to be presented in a written form and to contain the details of the court, the name, the address or the residence of the parties or, as the case may be, of the company or of the administrative authority and their headquarters and those of the representing person, too, the object of the petition and the signature (article 82 from the Code of civil procedure).

      • 34. Judicial impartiality

        The impartiality of the judge is ensured by norms contained in the Code of civil procedure (article 24-36), and in their appliance the judge who knows that against him exists one of the stipulated challenge reasons, has the duty to notify his superior and to refrain from judging the case.

        If the judge does not refrain voluntarily, the interested party may file a challenge proposal, such being done orally or in writing for one or for each judge sitting in the panel, before the beginning of any debates or, when the reasons for challenging appeared after the beginning of the debates, at the time when the challenge grounds are known by the person who makes the request. The judge against whom the challenge is proposed may declare afterwards that he abstains himself.

        The challenge request for one or more of the judges is decided by another panel from the same court, in the council room, in absence of the parties but in presence and with the hearing of the challenged judge, who can not be part of the panel organization.

        During the trial of the challenge petition no procedural measure can be taken.

        The reasons for which a judge may refrain himself or be challenged are strictly stipulated by the Code of civil procedure. According to the article 24, for example, the judge who pronounced a decision in a certain case, cannot take part at the trial of the same case in review or in appeal, and nor in case of retrial after annulling. Also, as an example, we indicate that the person who was a witness, an expert or an arbiter of the same case can not take part in the trial as a judge. And, among other reasons shown, the judge can be challenged when he, his husband, their ancestors or the descendants, have an interest in respective case or when is the husband, the relative or relation, until the forth grade inclusively, with one of the parties involved in the litigation assigned to him.

      • 35. Possibility to rely on the new legal arguments in the course of proceedings

        After submitting the legal action, the claimant is entitled to further complete or to modify it only until the first hearing date for which all partied concerned were legally summoned. After that procedural moment, only with the deliberate or implicit agreement of the defendant the modification of the legal action is permitted. In order for the parties not to be deprived of any degree of jurisdiction, the claimant can modify his action only in front of the first court, not in the appeal stages, when also the position of the parties cannot longer be changed, nor the legal grounds or the object of the legal action.

        There are certain exemptions from this rule, for example if reasons of public order are invoked or other similar procedural exceptions, that can be raised by any of the parties, or by the prosecutor, or by the court ex officio, in any moment of the court case even directly pending the appeal stages.

      • 36. Persons allowed to intervene during the main hearing

        According to the Code of civil procedure, the participation of a third party within a pending trial between other persons can be realized by a voluntary or by a forced intervention.

        The voluntary intervention can be to the “own interest” (also called main intervention) when the person who intervene allege his own right, or to the interest of one of the parties (also called subsidiary intervention), when it sustain only the defense of respective party.

        The forced intervention is made at the initiative of any of the parties and it is determined by the interest of these of bring into trial third persons, from outside the trial until that moment.

        As an application of the rule contained in the Code of civil procedure, the Law on administrative disputes stipulates that the court of administrative disputes can summon on request, the social authorities interested into the object of the claim or it may bring to the debates of the parties , ex officio, the necessity of summoning and introducing into the proceedings other individuals or authorities, as well.

      • 37. Existence and role of the representative of the State (“ministère public”) in administrative cases

        The Law on administrative disputes stipulates that the Public Ministry, when as a consequence of exercising the attributions stipulated by its organic law, appreciates that violation of the rights, of the liberty and of the legitimate interest of the individuals and/or legal entities is due to the existence of some individual unilateral administrative acts, issued by the public authorities with power abuse, with the preliminary agreement of these, it shall notify the administrative court from the residence of the individual or from the headquarters of the legal entity injured, the petitioner acquiring the position of claimant and shall be summoned in this capacity ( art. 1 paragraph 4).

        Also, when the Public Ministry appreciates that by issuing a normative administrative act, the public legitimate interest is injured, it shall notify the competent court of administrative disputes from the headquarters of the issuing public authority (art.1 paragraph 5).

        The representing person of the Public Ministry can participate in courts and present its conclusions in the administrative disputes, in any stage of the trial, whenever it appreciates it is necessary for defending the right order, the rights and the liberties of the citizens (art. 1, line 9)

        According to the article 14 paragraph 3, from the Law on administrative disputes when it is about a major public interest, that could disturb severely the functioning of the administrative public service, the suspending request of the normative administrative act can be introduced also by the Public Ministry, ex officio or upon request.

        These rules constitute the appliance of the general rule regarding the prosecutor’s role in the civil trial stipulated by the Code of civil procedure (Article 45) according to which the Public Ministry could start the civil action whenever it is necessary for defending the rights and the legitimate interests of minors, of the people under interdiction and of the disappeared people, as well as in other cases strictly stipulated by law. The prosecutor can drawn conclusions in any civil court case, in any stage of this, if he appreciates that it is necessary for defending the right order, the rights and the liberties of the citizens and, under the law conditions it can also file an appeal against any decision.

        When expressly stipulated by the law, it is compulsory for the prosecutor to participate and present its oral conclusions. One of these cases is, for example, the one stipulated by the Emergency Decree of the Government no. 194/2002 concerning the regime of the foreigners in Romania according to which in all the complaints and the petitions addressed to the courts on the grounds of this normative act, where the Romanian office for immigrations is part of, the prosecutor’s participation is mandatory.

      • 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"

        There are no such institutions.

      • 39. Termination of court proceedings before the final judgment

        The court case could terminate before a final judgment is pronounced in the following cases:
        - The claimant gives up to its claim or to the subjective right based on which the claim was filed;
        - The total or partial acceptance by the defendant of the petitioner’s requirements and claims ;
        - The claim becomes out-of-date; that is a procedural penalty which determines the trial’s ending in the stage that it is following its suspension for more than one year, due to the party’s fault.

      • 40. Role of the court registry in serving procedural documents

        Under the conditions of article 86 from the Code of civil procedure, the communication of the court claims ( petitions ) and of all the procedural acts is made internally, through the procedural agents of the court or through any of its employees, as well as through agents or employees of other courts, in the districts corresponding to the addressee of the procedural act. If the communication can not be done this way, then it shall be done by post, by registered letter with proof of receiving or by any other ways that assures the transmission of the document and the confirmation of receiving it.

      • 41. Duty to provide evidence

        In the administrative disputes as well as in the civil disputes, the rule is that the duty to provide evidence belongs to the claimant, since he is the one who initiates the proceedings before the competent court. There are some exceptions from this rule, cases when the defendant is the first who has the duty to provide evidence, for example the legal presumption that passes on the duty of providing evidence from the claimant to the defendant.

        The Code of civil procedure (Article 129 paragraph 5) establishes that the judge has an active role, according to which he has the duty to use all the legal ways in preventing any mistakes regarding determination of the truth, based on establishing the facts and by the correct appliance of the law, with the purpose of pronouncing a substantial and a legal decision. The judges can, on the basis of this principle, take and order any and all evidences they consider necessary, even if the parties may not agree.

        According to the Article 13 in the Law on administrative disputes, when receiving the claim, the court may, together with the summon of the parties, ask the authority whose act is challenged, to immediately communicate respective act, together will all the documentation that stood at the base of its issuance, as well as other necessary papers for the case. The faculty of asking the above mentioned documents becomes an obligation for the court, in case the claimant is a third party or when the claim is introduced by the Ombudsman or by the Public Ministry.

      • 42. Form of the hearing

        The Romanian law system provide for and acknowledge the publicity principle. This means that the debates, in any court case, except for the deliberation, takes place in presence of the parties and in front of any person from outside who wants to assist at the debates.

        There are also exceptions from such rule, the court being able to decide the debates to take place in secret session, in case the public debates would injure the public order or the morality or the parties. In this case, the parties can be accompanied, besides their judges, by maximum two persons designated by them. Whether the trial takes place in public session or in the council room, the decision is always pronounced in public session under the nullity sanction.

        The debates stage starts when the court clerk presents the report of the case, showing briefly the object and the stage of the trial, the way it was accomplished the procedure of summon the people called for trial and if there were accomplished the other measures ordered by the court at the previous hearings. At the High Court of Cassation and Justice the report of the case is presented by the assistant of the judge.

        The president firstly give permission to speak to the claimant and then to the defendant, in order to sustain their arguments and their opinions. If necessary , the president of the panel can give permission to the parties or to their lawyers to speak several times, and can also interfere. The other members of the panel can ask questions to the witnesses or to the experts only by asking the president for permission, who may allow these questions to be addressed directly. If the prosecutor participates at the trial he will talk last, except for the case he started the trial, situation in which he will talk first.

        The Romanian procedural law recognize the mixed system of debating a case in front of the trial court, system which combine the oral procedure with the written procedure. This way, according to the article 127 from the Code of the civil procedure, the causes are debated orally, if the law does not dispose differently. If one of the parties or the witness does not understand Romanian language certified translator or a reliable person shall be used. These rules applies to the experts as well.

        The oral arguments of the parties and of other participants at the trial are recorded in writing in conclusions, testimonies of the witnesses, minutes. The court may ask the parties to also submit written conclusions or a written resume of their oral closing arguments.

      • 43. Judicial deliberation

        According to the Code of civil procedure, after finishing the debates, the judges shall deliberate in secret, either within a session or in the council room.

        Only the members of the judge panel shall participate to the deliberations.

        In the composition of the panel for deciding, in first instance, the causes concerning the work conflicts and social insurance are comprised, besides judges, 2 judicial assistants who participate at the deliberations having just an advisory vote.

        The assistant of the judges who participate at the hearing sessions at the High Court of Cassation and Justice also takes part at the deliberations having just an advisory vote.

        Even when the prosecutor participates at the hearing sessions, he can not be present at the deliberations.

    • C. JUDGMENT

      • 44. Grounds for the judgment

        The judges have the duty to establish, correctly and in agreement with the parties’ will, the facts submitted to trial, to identify the legal norms applicable to the judicial relationship between the parties and to apply them according to the law, by pronouncing a firm and legal decision.

        The decision is pronounced according to the law and contains at least the following mentions: (i) the trial court which pronounced it and the name of the judges who participated at the trial; (ii) the identification data of the parties and of their representatives; (iii) the object of the legal claim and briefly, its supporting arguments ; (iv) the strong reasons that convinced the court, and those for which the claims of the parties were not taken into consideration; (v) the solution; (vi) the appeal way that be filed against it ; (vii) the period of time in which the appeal can be exercised; (viii) the mention that the pronouncement was made in public session; (ix) the signatures of the judges and of the clerk.

        The motivation of the decision has to be pertinent, complete, concrete, convincing and accessible. The real reasons that a decision must contain represents the elements of the judicial syllogism, the pre-requisites that lead to the conviction of the trial court and the approval of the solution.

      • 45. Applicable national and international legal norms

        The legality control of the administrative act is realized by the court of administrative disputes in accordance with the legal provisions on the base of which the act was issued. The reference to the legal provisions is made considering the hierarchy of the judicial power of the laws: constitutional laws, organic laws, ordinary laws, judicial decrees and Governmental decrees. The legality control is realized also by references made to the treaties to which Romania is a signatory party. According to the Constitution these treaties are part of the intern law. Regarding the fundamental human rights, the constitutional provisions and implicitly, those from the national legislation, are interpreted and are applied in agreement with the Universal Declaration of Human Rights, with the agreements and all the other international treaties to which Romania is part of. In the case when there are some inconsistencies between the agreements and the treaties regarding the fundamental human rights to which Romania is part of and the national laws, the international treaties have priority, except for the case when the Constitution or the national laws contain more favorable provisions.

        The legality control of the administrative act is also realized by reference to the principles stipulated in the European Convention of Human Rights and to the practice of European Court of Human Rights.

      • 46. Criteria and methods of judicial review

        In Romania, the legal system institutes a legal jurisdiction control within which the trial court is competent to realize a complete jurisdiction, meaning that it can dispose the annulment or the modification of the administrative act and also the recognition of the right claimed or the legitimate interest and the coverage of the damage caused to the injured person.

        Considering the legality principle which governs the entire activity of the public administration, the competent administrative court realizes the legality control of the act submitted to verification and challenged in court in comparison with the governmental decrees with superior judicial power on the basis of which the act was issued. The competent administrative court can not pronounce with regard to the opportunity of issuance of an administrative act as long as it notes that this was issued by the public authorities that have such competence and with full observance of the legal provisions having superior judicial power. Within the control exercised, the competent administrative court verifies: if the claimant that file the court action was injured in a right or legitimate interest by an administrative act issued by the public authority summoned for trial or by not solving in a legal period of time or by the unjustified refusal of solving the petition applied to the public authority; when issuing the administrative act the public authority abusively used the power granted by law and it exercised the right of appreciation with the violation of the rights and the fundamental liberties stipulated by the Constitution or by the law.

        The administrative court is competent to pronounce with regard to the legality of the acts or of the administrative operations that were at the base of issuance of the act submitted to trial.

        According to the principle of power separation within the state, the court of administrative disputes can not pronounce a decision that would represent and would be a substitute for an administrative act.

      • 47. Distribution of legal costs

        With regard to the administrative disputes, similarly to the rule applicable in civil cases, the expenses caused by the initiation of the case are borne by the party who lost.

        Specific to the administrative disputes is the fact that in case of not respecting the execution term of the final and irrevocable decision pronounced by the trial court, a fine of 20 per cent from the minimum gross wage per day of delay shall be applied to the leader of the public authority or, as the case may be, to the person in charge and the claimant has the right to receive reimbursement for any delay. Non-execution or not respecting the final and irrevocable decrees even after the appliance of the fine above mentioned is considered to be and offence and it is punished with jail from 6 months to 3 years or with a fine of 2.500 lei (about 750 euro) to 10.000 lei (about 3000 euro).

      • 48. Composition of the court (single judge or a panel)

        The administrative cases mentioned, according to the law, in competence of the first level court are judged by a panel formed by a single judge (example: the complaint formulated against the establishing record and the punishment of the contravention).

        The causes mentioned, according to the law, in competence of the tribunals or of the Court of Appeals, in first instance, are judged by panel comprised of two judges. This composition of the court has been recently introduced by the Law no. 262/2007, which entered into effect on the 2nd of August 2007.

        The appeal against the decisions pronounced in first instance by the tribunal or by the court of appeals is comprised of three judges, except for the cases when the law stipulates differently.

      • 49. Dissenting opinions

        The Code of civil procedure regulates the institution of the dissenting (separate) opinion of the judge in minority. The separate opinion is registered in final part of the decision, after the presentation of the majority opinions who sustains the presented solution. The majority opinion is motivated and signed only by the judges who agree with it, and the separate opinion is motivated and signed only by the judge in minority.

      • 50. Public pronouncement and notification of the judgment

        The article 28 from the Law on administrative disputes no.554/2004 stipulated that its provisions are completed with those of the Code of civil procedure as far as these last are compatible with the specific nature of the authority reports within the public authorities, on the one side, and the people injured in their rights or their legitimate interests, on the other side, as well as with the procedure regulated by such specific law.

        Regarding the pronouncement of the decision, the Code of civil procedure stipulates that the decisions are pronounced by the president of the panel, in public session, even when the parties are absent. If needed, the panel can decide postpone of the decision pronouncement with 7 days from the moment when the closing arguments have been presented. Parties are entitled to submit written conclusions within this time period.

        The pronouncement refers strictly to the solution in short of the decision.

        In what regards the communication of the decision, the provisions of the Code of civil procedure are applicable and according to them, the decision is communicated to the parties, as a copy, in case that it is necessary and required for the exercising term of making the appeal. The communication is done after its preparation in writing. The decisions pronounced by the court of administrative disputes, as an appellate court, against which no other appeal can be filed (this kind of decisions are the ones pronounced by the Tribunals – regarding the complaints formulated against the records of establishing the contraventions and the appliance of a punishment – and by Court of Appeals and also by the administrative and fiscal disputes department of the high Court of Cassation and Justice), the parties are not officially receiving by post the written decisions, but they may receive, on request, a copy of the decision pronounced in the litigation in which they were involved.

    • D. EFFECTS AND EXECUTION OF JUDGMENT

      • 51. Authority of the judgment. Res judicata, stare decisis

        The final and irrevocable decisions, by which administrative acts with normative character had been annulled are compulsory and have power only for the future. These are published in the Official Gazette of Romania, first part, or, as the case indicates, in the Official Gazette of the districts or of Bucharest, on the execution court request or on the petitioner’s request. On the hypothesis that a new litigation in which it is requested the annulment of an administrative act having normative character, previously annulled through a final and irrevocable decree, it is opened, the court shall reject such action, as no longer having a legal object, as a consequence of the first annulment; the document submitted to the legality control does no longer exist.

      • 52. Powers of the court in limiting the effects of judgment in time

        According to the administrative law, in case of admission of the action, the court rules, to the extent it was requested in the claim, not only on the validity of the presumed illegal administrative act but also on the validity of the judicial acts concluded based on the illegal administrative act, and also with regard to the judicial effects caused by this.

      • 53. Right to the execution of judgment

        The final and irrevocable decisions, by which the actions were rejected and were granted trial expenses, are invested with an execution formula and are enforced, according to the common civil procedure.

        The final and irrevocable decisions, by which an administrative act with normative character had been annulled, totally or partially, are compulsory and have power only for the future. These decisions are obligatory published, on the court request, in the Official Gazette of Romania or, as the case indicates, in the Official Gazette of the districts or of Bucharest.

        If due to the admission of the action, the public authority is obliged to annul, to replace or to modify the administrative act, to issue another one or to effectuate certain administrative operations, the execution of the final and irrevocable decision will be made within the term stipulated in the content of this, and if the term is not specified, within no more than 30 days from the date when the decision remained irrevocable.

        In case that the execution term of the decision is not observed, a fine of 20 per cent from the minimum gross wage per day of delay is applied to the leader of the public authority or, as the case indicated, to the person in charge and the petitioner has the right to receive reimbursement for delay. The offence and the reimbursement are applied, or are granted by the execution court on the petitioner request.

        Non-execution or non-observance of the final and irrevocable decisions pronounced by the court of administrative disputes, within 30 days from the date when the fine for non-execution was applied, it’s considered an offence and it is punished with jail from 6 months to 3 years or with a fine of 2.500 lei to 10.000 lei.

      • 54. Recent efforts to reduce the length of court proceedings

        The entire legislation in matter of administrative disputes is submitted to the principle of solving such litigations within a reasonable time period.

        The measures stipulated by the legislation in order to reduce the length of court proceedings specific to the administrative disputes consist in:
        - Apart from the common procedures, the rule in matter of administrative disputes is that the court claims are judged with urgency, rule stipulated in the article 17 line (1) from the Law number no. 554/2004 on the administrative disputes;
        - The final and irrevocable decision pronounced by the court of administrative disputes are enforceable according to the law (ope legis), without being necessary their investment with an execution formula, as those of common civil cases. The law stipulates that the execution of these decision will be made within the term stipulated in the content of this and if the term is not specified, in no more than 30 days from the date when the decision remained irrevocable, under the punishment of the fine applied to the leader of the public authority or, as the case indicated, to the person in charge
        - The editing and the motivation of the decisions has to be done within 30 days from their pronouncement.

    • E. REMEDIES

      • 55. Sharing out of competencies between the lower courts and the supreme courts

        The competence of the courts of administrative disputes is regulated by the Law no 554/2004, as further amended, and by special laws specific to a certain domain or certain law branches.

        Article 10 from Law no. 554/2004 establishes two criteria based on which the administrative competent court is established, as follows:
        - the local or central position of the issuing body of the administrative act that form the object of the litigation. If the act was issued by a local authority, the litigation is solved by the administrative- fiscal tribunals (al present fiscal and administrative disputes departments of the tribunals) and if the issuing entity of the act is a central authority, the litigation is solved by the fiscal and administrative disputes department of the Court of Appeals.
        - The amount is the object of the administrative act in litigation (the amount is 500.000 new Lei – about 150.000 euro), the applicable criteria only when the act refers to taxes and duties, contributions, custom debts, as well as other taxes. In case the amount is under 150.000 euro the litigation is solved by the administrative fiscal tribunal (at present fiscal and administrative disputes department of the tribunal). In case the amount is bigger than 150.000 the litigation is solved by the fiscal and administrative disputes department of the Court of Appeals.

        Taking into consideration the principle of solving the litigations of administrative disputes with celerity, Law no 554/2004 grants a double degree of jurisdiction, therefore the decision of the first court is submitted only to the appeal which is solved by the Court of Appeals (in case the first court is the tribunal) or by the High Court of Cassation and Justice (in case the first court is the Court of Appeals).

        There are litigations of administrative disputes to the concern of which a special competence is regulated:
        - the litigations regarding the judicial regime of civil penalty, in case of which the competence corresponds in first instance to the first level court, and the appeal is solved by the administrative disputes department of the tribunal (The government decree no. 2/2001 regarding the regime of civil penalty);
        - the litigations regarding the decisions of the Plenum of the Superior Council of Magistracy regarding the carrier and the rights of the judges and prosecutors that can be directly appealed before the fiscal administrative disputes department of the High Court of Cassation and Justice.

        The law establishes an alternative territorial competence of the court of administrative disputes. The common rule is that the competent court is the one from the residence of the claimant. In matter of administrative disputes, article 10, line 3 from the Law no. 554/2005 stipulates that the claimant can choose either the court from his residence or the court from the residence of the defendant, but once the claimant chose the court from the residence of the defendant, neither of the parties or the court can raise the exception of the territorial incompetence.

      • 56. Recourse against judgments

        The Law on administrative disputes regulates the appeal as being the solely recourse way that can be exercised against the administrative decision pronounced in first instance. The appeal term is of 15 days, as well as for the common civil cases, running from the communication date. With regard to the administrative matters other appeal terms stipulated by the code of civil procedure are also applicable, as follows: the 5 days term when the decision is pronounced for solving the competence conflicts or the decision by which the court declares incompetent, etc.

        The term of appeal in matter of administrative disputes is of 5 days from the communication date in case the decision appealed regards:
        - An illegality exception that was accepted
        - A petition for suspending the execution of the administrative that was accepted;
        - the execution court applies the penalty and grants reimbursement for non execution of the irrevocable and final decision within the period of time established by the court or within 30 days since it remained irrevocable.

        The appeal is solved by the court hierarchically superior to the one competent to pronounce the decision in first instance.

    • F.  EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF

      • 57. Existence of emergency and/or summary proceedings

        The law regulates, in matter of administrative disputes an emergency procedure in order to ensure, according to the Recommendation R (89) of the Minister Committee of Europe Council, the temporary court protection of the rights and the legitimate interests of the individuals, in perspective of the detriments that could be caused to them by an administrative act: the execution suspension of the administrative act.

        The execution suspension of the administrative act could be disposed on the grounds of the article 14 and article 15 from the Law on Administrative Disputes no 554/2004, only if two conditions are simultaneously accomplished: 1) a good justified case, regarding the existence of a strong doubt about the presumption of legality, of which an administrative act benefits, in order to defeat the principal according to which the administrative act is intern executor; 2) prevention of an imminent damage, of a future material prejudice, but predictable with evidence, or of a severe predictable perturbation of a public authority work or a public service,

        The emergency of this measure is characterized by the fact that the legislator has clearly stipulated that the petition is immediately trialed, the decision by which the measure is disposed is enforceable by law, and the appeal may be declared within 5 days from the decision pronouncement.

        The suspension request of the administrative act execution is trialed by legal summon of the parties involved, in public session.

        The brief character of this procedure is marked by the fact that the court does not investigate the act’s legality on the merits, of which suspension is claimed, but only verifies the accomplishment of the two conditions mentioned, that does not implicate the prejudge of the litigation on the merits.

      • 58. Requests eligible for the emergency and/or summary proceedings

        The execution suspension of the administrative act could be disposed if two conditions are simultaneously accomplished: 1) A good justified case, regarding the existence of a strong doubt about the presumption of legality, of which an administrative act benefits, in order to defeat the principal according to which the administrative act is intern executor; 2) prevention of an imminent damage, of a future material prejudice, but predictable with evidence, or of a severe predictable perturbation of a public authority work or a public service.

        The temporary suspension of the irrevocable and final decision execution, in case of filing an appeal against the execution, or another request regarding the forced execution, is disposed if two conditions are fully accomplished: 1) the existence of an emergency case; 2) the bail payment in amount of 10% from the value of the object from the petition or 5.000.000 old Lei (about 150 euro) for the petitions not estimated in money.

        The temporary suspension of the irrevocable and final decision execution, in case a contestation against the execution is filed, or another request regarding the forced execution, is granted if the bail, in the amount established by the court, is paid and if the court considers that the arguments presented by the petitioner can justify such a measure. Thus, he payment of the bail established by court or by law does not represent the only necessary and sufficient condition for the suspension of the execution to be granted.

      • 59. Kinds of summary proceedings

        Besides the procedures presented on point 57 and 58 the law does not regulate in matter of administrative disputes other kinds of summary proceedings.

  • III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES

    • 60. Role of administrative authorities in the settlement of administrative disputes

      With regard to the administrative disputes there are two stages and procedures: the preliminary stage and the court stage developed in front of the court. The administrative authorities have a pre-eminent role in the preliminary stage when it is realized:
      - the intern control ( within the authority);
      - hierarchical control (by the hierarchically superior authority);
      - preliminary proceeding (hierarchical administrative appeal)

      Within this control forms that find their justification in the necessity of avoiding administrative disputes submitted to trial, the administrative authorities have the possibility to identify and correct the administrative acts that they are about to issue or that they had issued, but which did not enter into the civil circuit, potentially harmful for the rights and the legitimate interests of the subjects in right, which they are addressed to.

      An intermediate stage is represented by the control exercised by administrative jurisdictions as a control form realized by bodies with jurisdiction attributions, in the system of the public administration bodies, control that regards the legality of certain category of administrative acts stipulated by the law. This form of control is finalized by jurisdiction administrative acts that are submitted to judicial court control. According to the Constitution, administrative special jurisdictions are optional and free of charge. As an example, we mention the special administrative jurisdiction established in matter of public acquisition contracts, of public works concession contracts and services concession contracts, regulated by Governmental Emergency Ordinance no. 34/2006.

    • 61. Role of independent non-judicial bodies in the settlement of administrative disputes

      The Ombudsman is the independent public authority having the purpose of defending the people’s rights and liberties in their relation with the public authorities. When the Ombudsman appreciates that a certain administrative act is illegal or determines a power abuse of an administrative authority, it may register with the court of competent administrative disputes, a complaint in this respect, situation in which the person that notified this institution acquires the position of claimant (plaintiff).

    • 62. Alternative dispute resolution

      Previous to the notification of the court, the disputes between the injured people and the administrative authorities can be solved within preliminary administrative proceedings by the potential accomplishment by the administration of the individuals’ requests and complaints.

      Subsequent to the notification of the court, the disputes of administrative right could be ended in case the summoned authorities accept to solve amicably the requirements of the injured persons. This could lead to a renouncement to the trial or to a decision establishing that the dispute has no longer an object. Such a manner of solving administrative disputes does not mean the conciliation nor the transaction according to the common civil procedural law.

      The Law on administrative disputes does not regulate the arbitration proceeding as manner of solving the administrative disputes which is incompatible with the specific of the authority reports between public authorities, on the one side, and people injured in their rights or legitimate interests, on the other side, as well as the administrative disputes proceedings.

  • IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA

 
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