In the following guideline we will provide you information regarding the revocation procedure or, the case may be, cancellation of the administrative act, the time frame when these measures can be taken and an indication of the competent authorities.
What is an administrative act?
The administrative act, as defined in the Administrative Litigation Law No. 554/2004, represents the unilateral act, emanating from a central or public authority in order enforce or to organize the enforcement of the law.
Another category, assimilated to the administrative acts are the administrative contracts whose object are the execution of public works, enhancement of public property goods, public services, public procurement, etc.
According to the effects they produce, they have either a normative character in the sense that they apply to the level of community or to a certain category of persons, or, on the contrary, they have an individual character, so it is applied to a specific person determined by the issued document (eg: permits, school diplomas, decisions, certificates of awarding rights).
Unilateral administrative acts are also considered to be the unjustified denial to solve a request regarding a right or legitimate interest, or, not offering an answer to the applicant within the legal term (usually 30 days).
I. The Challenging Procedure. Conditions. Terms.
A.First step: The preliminary procedure
One of the obligations to be respected in order to challenge the administrative acts, supposes obligatory a preliminary procedure, in front of the authority which issued the administrative act.
Therefore, the person who considers it is harmed in his right or in his legimate interest, through an unilateral administrative act, has to request in writting to the issuing public authority, the revocation of the act in whole or in part there of. We mention that the complaint can be addressed equally to the hierarchical superior body, if it exists.
Through the same procedure can be challenged the administrative contracts and the administrative acts with individual character, addressed to another subject of the law, but which harm your interests.
Exceptionally, the preliminary procedure is not required in case the institution unjustified denies to solve a request regarding a right or legimate interest, or, does not offer an answer to the applicant within the legal term.
A special attention must be given to the time limits within you can use the procedure described above. The legislator will fix a time limit of 30 days, which shall begin at the date of the communication of the document, in which you can file your complaint for the damage you suffered because of the act issued by the authority. In exceptional cases the period of 30 days may be prolonged, but not later than six month from the issue date of the document.
In case the authority to which you have formulated a prior complaint shall respond within a period of 30 days, or, as the case may be, the period referred to in the regulation by the institution of the date of the registration of any complaint, or, it will answer but you are not satisfied with the settlement received, or the answer came up with delay, a fact that has created already a damage, you can sue the institution to request cancellation, in whole or in part, of the act and ask also for moral damages.
B. Step 2: Procedure in front of the Court
A very important aspect to remember is that the introduction of the action against prior complaints can be filed only in front of the administrative courts, at the addresses of both the applicant and the defendant.
Therefore, according to the legal provisions, disputes concerning acts of administration issued or concluded by local public authorities and county councils, as well as those which relate to taxes and duties, contributions, customs debts and accessories, up to 1,000,000 lei shall be settled, in the first instance, by the fiscal-administrative courts, and, in the case of those concerning acts of administration issued or concluded by the public authorities, as well as those which relate to taxes and duties, contributions, customs debts and accessories, more than 1,000,000 lei shall be settled, in the first instance, by the fiscal-administrative sections within the appeal courts, if by special law does not provide otherwise.
As an exception, the law establishes that the summons which attack administrative acts issued by central public authorities representing amounts of non-reimbursable financing from the European Union, regardless of their value, shall be settled in the first instance by the fiscal-administrative sections within the appeal courts.
In case the administrative court issues a judgment unfavorable to the injured party, that judgment may be appealed within 15 days from the communication to a superior court.
The deadline for submitting the complaint
Like the case of the preliminary procedure, the complaint can be summited in front of the court within a certain time frame that will flow differently depending on the type of the administrative act.
Claims requesting the annulment of an administrative act individually or the acknowledgment of those rights and remedies for the damage caused may be filed within 6 months from:
- a) the date of receiving an answer to the prior complaint, or, if applicable, the date of the communication of the refusal, considered unjustified, of the settlement of the claim;
- b) the expire date of the legal term of setteling the claim, without exceeding 1 year;
- c) date of signing of the conciliation protocol, in case of the administrative contracts.
For special reasons, the claim may be introduced over the period of 6 months, but not later than one year from the date of the communication of the act, date of taking notes of the act, the date of filing the claim or the date when the protocol of conciliation was signed.
The suspension of the administrative act
Another important aspect to note is that once the prior complaint was filed or later in front of the Court, it can be required also the suspension of production of legal effects of the act which is the object of the court case. The suspension of an administrative act may be requested only in front of the Court.
Costs – stamp duty
In case of the prior complaints filed in front of the public institutions which issued the act, the payment of the stamp duty is not neccesary.
The situation changes in case of the claims filed in front of the Court.
Thefore, for filing the claim in front of the Court, the stamp duty will be paid according to OUG 80/2013, as it follows:
“In litigation matters, the claims filed by the damaged party in their rights by an administrative act or unjustified refusal of an administrative authority to deal with the application relating to a right recognized by law, shall be taxed as follows:
- a) claims for the annulment of the act or, as the case may be, recognition of the right claimed, as well as for the issuing of a certificate, a certificate or any other written document – 50 lei;
- b) property-related claims, which require the compensation for the damage suffered because of an an administrative act – 10% of the alleged value, but not more than 300 lei”.
As an exception from the provisions presented above, the law on adminsitrative litigation requires that the claims which have as an object the administrative contracts, the duty stamp will be calculated at the deducted value of the judgement.
In conclusion, the persons whose rights are not respected by the administrative acts issued by the public authorities must follow the procedure of challenging these acts filing first a prior complaint in front of the issuing and subsequently to file a claim in front of the court respecting the time limit provided by the law.
For further information on this aspect and any other questions please feel free to contact: Mag. Lazăr Georgiana L.L.M. firstname.lastname@example.org.
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