Modificări recente ale legii nr. 554/2004 privind contenciosul administrativ
Recently, Law no. 212/2018 modified Law no. 554/2004 on Administrative Litigation. We have drawn up, in the following, a synthesis of the main novelties in the matter.
It is to be noted that a significant change occured by redistributing the substantive jurisdiction of the courts according to the value of the case. For example, by amending article 10 of Law no. 554/2004, it is stipulated that the Tribunal judges in substance the disputes concerning the administrative acts issued or concluded by the local and county public authorities, as well as those regarding taxes and duties, contributions, customs duties, as well as their accessories up to 3,000,000 lei, as opposed to the old regulation in which the value threshold for the exercise of judicial control by the Tribunal was 1,000,000 lei.
Clearly, this change is closely related to the state of justice report of 2016 issued by the national courts indicating that in 2016, at the Tribunals’ level as courts of general law, the number of newly entered case-files, strictly in the matter of the contentious administrative litigation, had a share of 28.7% of the total number of new entries. In other words, the load at the level of this court is getting bigger and bigger with the passage of time, requiring the legislator to intervene in order to stabilize the courts’ management. The principles that were taken into consideration while amending these laws were mainly due to a reduction in the duration of the cases, the balancing of the volume of activity between the courts’ sections and between the courts and, respectively, the compliance with the decisions of the Constitutional Court that modified the Law of Administrative Litigation.
The first amendment made by the legislator – referring to the numbering of the texts – is concerning the definition of the administrative act. It is not a substantive change, but one based on the rules of legislative technique and thus article 2 paragraph (1) letter c) defines an administrative act as a unilateral act of an individual or normative nature issued by a public authority under state authority in order to organize the enforcement of the law or the actual enforcement of the law, that gives rise to, modifies or extinguishes legal relations, and article 2 paragraph (1) letter c1) stipulates that there are supposed to be assimilated to administrative acts, within the meaning of this law, the contracts concluded by public authorities which have as object the maximizing of potential of public property, the execution of works of public interest, the provision of public services, public procurement; special laws may also include other categories of administrative contracts.
The second change was made to article 5 paragraph (3), which was retouched following the admission of the objection of unconstitutionality by Constitutional Court Decision no. 302/2011, in the following form: “In disputes concerning the administrative acts issued for the enforcement of the state of war, state of siege or emergency, those concerning national defense and security or those issued for the restoration of public order, as well as to eliminate the consequences of natural calamities, epidemics and epizootics, the provisions of article 14 are not applicable.” Following this amendment, article 5 paragraph (4) has been abrogated.
The third amendment aimed at completing and improving article 7 and thus paragraph (1), (3) and (5) have been changed having now the following content:
“(1) Before appealing to the competent administrative court, the person who considers to have his rights of legitimate interests affected by an individual administrative act addressed to him must request the issuing public authority or the hierarchically superior authority, if any, within 30 days from the date of the communication of the act, for its revocation, in whole or in part. For well-founded reasons, the affected person, the addressee of the act, may file the preliminary complaint, in the case of unilateral administrative acts, also beyond the deadline stipulated in paragraph (1) but not later than 6 months from the date of issue of the act.”
“(3) The person whose right or legitimate interest’s has been affected by an individual administrative act addressed to another subject of law is also entitled to make a prior complaint. The preliminary complaint in the case of unilateral administrative acts shall be filed within 30 days from the moment the interested person becomes aware, in any way, of the content of the act. For solid reasons, the prior complaint may also be made after the 30-day period, but not later than 6 months from the date on which they became aware, in any way, of its content. The six-month period provided for in this paragraph, as well as the one provided in paragraph (1) are prescription terms.”
“(5) In the case of legal claims filed by the prefect, the People’s Advocate, the Public Ministry, the National Agency of Civil Servants, those concerning the claims of the persons affected by ordinances or provisions of the ordinances or the actions against administrative acts that cannot be revoked due to the fact that they entered the civil circuit and produced legal effects, as well as in the cases provided by article 2 paragraph (2) and article 4, no prior complaint is mandatory.”
Article 7 paragraph (6) letter b) was also amended and thus, according to the legal provision, the preliminary complaint in the case of legal actions having as object administrative contracts must be made within 6 months from the date on which the applicant knew the cause of the annulment, but not later than one year after the conclusion of the contract.
Article 7 paragraph (6) c)-e) and paragraph (7) are abrogated.
Article 8 paragraph (1) has been changed in the sense that an important aspect has been introduced at its end, which states that “The pleas put forward in the application for annulment of the act are not limited to those invoked in the preliminary complaint”. This is indeed a proper amendment and it is very important to consider it since one of the famous defences of the National Agency of Fiscal Administration before the courts is that the plaintiff could not use any defence other than that raised in the prior complaint. As the doctrine and jurisprudence have pointed out over time, and now the law, this statement was inappropriate.
Also, article 8 paragraph (2) has also been modified in the sense that “the contentious administrative court shall have jurisdiction to resolve legal disputes arising in the pre-concluding of an administrative contract as well as any other litigation relating to the conclusion of the administrative contract, including the disputes concerning the annulment of an administrative contract. Litigations arising from the execution of administrative contracts are in the jurisdiction of the ordinary civil courts”.
We have also shown above that the article on competence has been radically modified. In the current regulation, the substantive jurisdiction of the Courts of Appeal’s contentious administrative sections is given by administrative acts issued or concluded by central public authorities, as well as those concerning taxes and duties, contributions, customs debts and their accessories over 3,000,000 lei, unlike the old regulation where the value threshold was 1,000,000 lei.
Also, the provision that the requests for administrative acts issued by central public authorities concerning amounts representing the European Union grant, regardless of value, were also settled by the contentious administrative and fiscal section of the Courts of Appeal, was also modified. Thus, under the current regulation, requests for administrative acts concerning amounts representing grant from the European Union are settled according to the value criterion. That is to say, claims for amounts representing grant from the European Union, if they are up to the threshold of 3,000,000 lei, shall be judged by the Tribunal at first instance, while claims involving amounts higher than 3,000,000 lei shall be judged by the Court of Appeal.
It is also specified that all claims regarding non-monetary administrative acts shall be settled according to the rank of the authority, pursuant to the provisions of paragraph (1). From our point of view, this provision could be missing since it is just a confirmation of the general rule. A non-monetary act issued by a local authority will be tried in the first instance by the Tribunal and an non-monetary administrative act issued by a central public authority will be tried in the first instance by the Court of Appeal.
The reason behind the modification of this paragraph lies in the fact that the legislator wanted to give up the exclusive jurisdiction of the Courts of Appeal in the matter of European grants, as the High Court of Cassation and Justice was most often reached with appeals for administrative acts which were of very low value and did not raise complex law issues. Therefore, the legislator decided that the grounds that were taken into consideration when introducing the former paragraph (11) no longer subsist under the current regulation.
Moreover, the article that provided an alternative jurisdiction of the court, in the sense that under the old regulation the applicant could turn to the court from their domicile as well as to the one from the defendant’s domicile, has also changed radically. The legislator has decided to give up this type of jurisdiction since abusive practices have been brought to court – the same applications have been filed to different courts according to the courts’ practice. In reality, the problems raise where there are a lot of complainants and the courts have not been able to verify these requests effectively, so that there have been several types of solutions for the same legal issue.
According to the new regulation, the plaintiff, a natural or private legal person, will be required to apply to the competent court from his domicile or headquarters.
Otherwise, when the claimant is a public authority, a public institution or an assimilated institution, it will exclusively address to the court from the defendant’s headquarters.
Also, a new paragraph (4) has been introduced in this article, which states: “The territorial jurisdiction to resolve the case will also be observed when the legal action is brought on behalf of the plaintiff by any person of public or private law, regardless of its standing in trial”.
The legislator also intervened regarding article 13 paragraph (1) with the intention of making it clearer, and so its contents are as follows: “When receiving the application, the court orders the notification of the parties. The issuing public authority will communicate the contested act and all its documentation that was the basis for its issuance as well as any other works necessary for the settlement of the case, together with the defence memoire. The court may require the issuer any other works necessary to settle the case”.
A very important change can be observed in article 14, which, after the amendment, has the following content: “The court resolves the request for suspension, urgently and primarily, with the notification of the parties. The procedure stated in article 200 and 201 of the Civil Procedure Code is not applicable. The filing of defence memoire is mandatory and it is submitted to the case file at least 3 days before the trial date. The complainant will take note of the content of the defence memoire from the case file. The court may grant a new trial date if the applicant requests the postponement in order to take note of the content of the defence memoire”.
Basically, the reason behind this modification is to shorten the duration of trials, thus eliminating the stage of regularizing the legal action, as well as reducing the workload of auxiliary staff.
It is worth mentioning that due to the fact that article 201 is not applicable, we no longer have to submit the response to the defence memoire.
The amendment to article 15 is not tremendous in the sense that the irrevocable mention has been removed from the article, but, of course, this modification is welcome now as well, even if it should have been removed for some time.
The following change is included in article 16 and so “claims may also be brought personally against the person who contributed to the preparation, issue, enaction or conclusion of the act.”
Article 161 has also been modified, which at this moment has the following content: “When the legal relation that is to be judged requires it, the contentious administrative court will ask the parties for the necessity of introducing another person to the case. If neither of the parties requests the third party to enter the case and the court considers that the case cannot be resolved without the third party’s participation, the court will reject the claim without judging its substance”.
Article 17 paragraphs (1) and (2) have also been modified as follows: “(1) The requests addressed to the court shall be judged in a public hearing, in the formation of the court prescribed by law. The filing of the defence memoire is mandatory and will be communicated to the plaintiff at least 15 days before the first hearing. (2) For the requests formulated under this law, the stamp duties specified in the Government Emergency Ordinance no. 80/2013 regarding the judicial stamp duties, as subsequently amended and supplemented, are collected.”
Article 20 of the law has been amended and so it is now stipulated that the procedure for filtering appeals, based on article 493 of the Civil Procedure Code, is no longer applicable. The reason for the modification lies in the reduction of the court staff’s workload and the quicker setting of the first trial term.
Article 21 has been completely amended and thus has the following content:
“(1) It constitutes a reason for the revision of the case, which adds to those stipulated in the Civil Procedure Code, the the delivery of final judgments in violation of the principle of the priority of the European Union law, stated in article 148 paragraph (2) in conjunction with article 20 paragraph (2) of the Romanian Constitution, republished.
(2) Final judgments that do not refer to the substance of the case also constitute subject to revision, for the reason set out in paragraph (1).
(3) The request for revision shall be filed within one month from the date of the communication of the final judgment and shall be resolved urgently and primarily.”
This highly controversial solution equals in fact the compliance to the jurisprudence of the High Court of Cassation and Justice.
Article 24 paragraphs (3) and (4) have also been amended and brought into line with the current legal provisions.
Article 25 has also been amended and has the following content: “The applications referred to in article 24 paragraphs (3) and (4) shall be judged in closed session, in emergency procedure, and shall be exempted from the judicial stamp duty. The procedure stated in articles 200 and 201 of the Civil Procedure Code is not applicable. Filing of the memoire defence is mandatory and is to be submitted to the case file at least 3 days before the trial date. The complainant will take note of the content of the memoire defence from the case file. The court may grant a new trial date if the applicant requests the postponement in order to take note of the content of the memoire defence”.
The current content of paragraph (3) is the following: “The judgments given under the conditions of article 24 paragraphs (3) and (4) are subject only to appeal, within 5 days since their communication.”
From a practical point of view these latter amendments were also based on the reason to reduce the duration of trials and the workload of the courts’ auxiliary staff.