Parts III - IV

Alexandru-Sorin CIOBANU, Lecturer, Faculty of Law, University of Bucharest, The New Legislative and Jurisprudential Norms on the Plea of Illegality of Administrative Acts
The study aims to provide a critical overview on the new regulations regarding the exception of illegality, included in the Law no. 554/2004 regarding the administrative litigations through the Law no. 76/2012 regarding the application of the Law no. 134/2010 – the Civil Procedural Code. For such purpose, we considered useful to make a presentation of both the evolution in time of the legislation, and the case-law of the administrative courts, leaded by some controversial solutions of the High Court of Cassation and Justice. It must be emphasized the evolution in time of the legal „conflict” between the legislator and the Romanian supreme court, the former preferring, when it decided on the exception of illegality, to supersede from their application some provisions of the Law no. 554/2004 – in its revised version ‒ with the reasoning that they contravene with the EU rules and the case-law of the Luxembourg Court of Justice (former European Communities Court) and respectively with the provisions of art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as developed and explained in the relevant case-law. By analyzing the new provisions on the exception of illegality, provided under the Law no. 76/2012, we reach to the conclusion that they promote inadequate solutions and represent a step back from the previous regulations. The arguments in favor of such „verdict” are described in detail, the main problems in discussion being related to the admissibility of the exception of illegality for the normative administrative acts, the renunciation to the competence of administrative courts, the ways of appeal, the summoning of the authority that issued the act, etc.

Key-words: exception of illegality, administrative litigation, the Law no. 554/2004, the Law no. 76/2012, the Law no. 262/2007, administrative act, civil procedure, ECHR, Luxembourg Court of Justice, High Court of Cassation and Justice, Constitutional Court, case-law, competence, retroactivity

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