In the book edited with Mariolina Eliantonio (forthcoming in Routledge 2022) Indirect Judicial Review in Administrative Law. Legality vs Legal Certainty in Europe, we tried to bring to light the legal institution of the pela of illegality, a way of indirectly making ineffective administrative acts that have been ignored by the legal literature for too long.
The chapter on Romania (The indirect review of administrative action in Romania: the triumph of legality over legal certainty) discusses the main characteristics of the plea of illegality in Romanian legislation and case law. The plea of illegality has been one of the main disputed institutions of administrative law in Romania in the period following the communist era. It was introduced in law to allow the revisiting of old administrative acts during a tumultuous stage of reinstating properties forcefully taken by the communist regime (1990-2010). A power struggle between the legislator and the courts resulted in the initial scope of the plea being limited in time, but the institution continued to be a matter of contention among scholars and practitioners. The contention regards the fact that a wide scope for the exception of illegality puts the principle of legal certainty in jeopardy.
The administrative law system of Romania is in a ‘recovering’ phase following the dismantlement of the judicial review during the communist period. In this context, the interplay between reviewable and non-reviewable acts under Romanian law is interesting as the legal regime for direct review, as opposed to indirect review, has its peculiarities.
In comparative administrative law, the system of indirect review of administrative action is generally considered a defensive argument against unlawful general acts, when the applicant would have no standing to challenge them directly, or where the time limit for a direct challenge has expired.
However, in Romania, the plea of illegality is allowed currently only for individual acts. The existence of a strict time limit for challenging individual decisions (six months from the notification of the act to the addressee(s) or one year from the adoption of the act), has prompted the legislator with the idea of providing for a corrective procedure, which is to be used when the time limit has expired, the “exception” of illegality (exceptia de nelegalitate). The reasoning for this lies in the imperative of upholding the principle of legality at any time.
The exclusion of normative administrative acts from indirect judicial review faced critics in the doctrine. It has been argued that the exception of illegality would be effective in case of general (normative) acts when, for instance, the court is entrusted with the judicial review of an individual action based on a general (normative) administrative act and the plaintiff has an interest in annulling only the individual act by raising the plea of the illegality of the general act. For instance, if a general act (Government decision, local council decision) establishes the penalty for illegal parking, the legality of the general act can be challenged indirectly in a procedure where the act of application of a penalty (individual act) is challenged directly. The interest of the applicant is to annul the individual act and not the general act.
To successfully raise an exception of illegality, there needs to be a ‘link’ between the act whose indirect review is requested and the measure subject to direct review. Art. 4(2) of Law no. 554/2004 states that the court needs to consider that “the resolution of the dispute on the merits depends on the individual administrative act” to take upon itself to assess the legality of the administrative act. This is a matter to be established by the court on a case-by-case basis. In the doctrine, this connection was referred also to as a link related to the rights and obligations that are disputed in the trial on merits.
It seems that the legislator intended to regulate an imprescriptible plea of illegality. Applied in practice, this would seem to mean that Pandora’s box could be open, allowing courts to indirectly review and render ineffective individual acts that have been considered definitive for a long time.
As such, this aspect of the provision has raised strong criticism in the scholarship. The consequence of the provision is that, no matter what the time limits are for challenging individual decisions, they have virtually no effect, being shadowed by the possibility to call the act into question indefinitely. Moreover, it can be argued that the principle of legal certainty is seriously infringed when individual acts are open for review indefinitely. However, this principle is yet to be recognized in Romanian law. Nevertheless, the opinion in the doctrine was that the exception of illegality should be admissible only if the time limits for directly challenging the act have not expired, and by no means should it be accepted for acts issued before the new law on judicial review entered into force (i.e., in 2005).The tension between the principles of legality and legal certainty when regulating and implementing the system of indirect review has been solved by the Constitutional court, which sided with the principle of legality, declaring the exception of illegality as constitutional.
In the end, the chapter discusses the effectiveness of the current system of indirect review and its possible reforms.
The plea of illegality is quite often raised in practice. The predominant matters where it is used are urban planning procedures and administrative-fiscal procedures. Having interrogated the website www.Rolii.ro which provides information on court decisions, the query returned 985 court cases in the last five years (January 2016- October 2021) in which the exception of illegality was mentioned.
The final question is whether there is a need for reform, and, if so, in which direction. The shortcomings in the procedure for indirect review in the Romanian legal system are the fact that it covers only individual acts and not general acts, and that it opens indefinitely the legal review of individual acts to the detriment of the principle of legal certainty.
By way of recommendation, it is hereby submitted that the system of exception of illegality should cover both general acts and individual acts that can still be challenged directly before the court after the expiration of the deadline for direct review, thus giving more weight to the principle of legal certainty than is currently the case in Romania. Else, all the deadlines for direct review seem to be meaningless.
Although presented often because of the “Europeanisation” of the national law, the Romanian exception of illegality does not follow the models established in comparative law. On the contrary, it has been adapted pragmatically to the national context of a country in transition and used as an instrument to reopen cases that otherwise would be protected by the principle of legal certainty.
Posted by Dacian C. Dragos (Babes Bolyai University of Cluj-Napoca, Romania)
Suggested citation: D Dragos, “The indirect review of administrative action in Romania: the triumph of legality over legal certainty”, REALaw.blog available at https://wp.me/pcQ0x2-w0.