Abstract
The executive power in Romania is made up of two branches: the Presidency and the Government. In its status as executive authority, the Government issues decisions by means of which the execution of laws is organized. Based on legislative delegation, the Government also issues legal acts. These are represented by ordinances and emergency ordinances. The external control over the two categories of documents that the Government issues is exercised in different ways: control of legality and control of constitutionality . For ordinances and emergency ordinances; there is only control of legality for decisions. Because government decisions have the juridical nature of administrative acts, the contentious control over them may be exercised either directly or indirectly. Direct control is achieved by bringing about an action for annulment and thus constitutes a full-jurisdiction contentious control that is exercised by contentious-administrative courts, which are part of the judiciary. However, the injured party may opt for dispute settlement by certain administrative jurisdictions. The judge may examine the lawfulness and, within certain boundaries, the opportunity of Government decisions with an individual nature and only the lawfulness of decisions with a normative nature. Indirect control is performed by invoking the plea of illegality, which is to be settled by the court vested with the merits of the case, whether it is a contentious-administrative court or a common law one.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The Constitution of Romania was adopted at the meeting of the Constituent Assembly on 21 November 1991, was published in the Official Gazette of Romania, Part I, no. 233 of 21 November 1991 and entered into force after its approval by the national referendum of December 8, 1991. By the Law on the no. 429/2003 on the revision of the Constitution of Romania, published in the Official Gazette of Romania, Part I, no. 758 of 29 October 2003, the Constitution was amended. After approval by referendum of the Law on the revision of the Constitution of Romania, the Constitution was republished in the Official Gazette of Romania, Part I, no. 767 of 31 October 2003.
- 2.
The author quoted refers to the ideas expressed by Joseph Barthélemy in his Traité élémentaire de droit constitutionnel, Dalloz, Paris, 1932.
- 3.
Published in the Official Gazette of Romania, Part I, no. 164 of April 2, 2001.
- 4.
For example, there are such authorities as the National Audiovisual Council, the National Council for the Study of the Archives of Security, the Court of Auditors, the National Supervisory Authority for Personal Data Processing.
- 5.
Law no. 554 of 2 December 2004 on the Contentious-Administrative was published in the Official Gazzette of Romania, Part I, no. 1154 of 7 December 2004. Subsequently, it has undergone several changes, the latter being those contained in Law no. 138 of 15 October 2014 published in the Official Gazette of Romania, Part I, no. 753 of 16 October 2014. From now on, we will refer to this act by the acronym LCA.
- 6.
Published in the Official Gazette of Romania, Part I, no. 525 of 2 August 2007.
- 7.
Published in the Official Gazette of Romania, Part I, no. 313 of 13 May 2010.
- 8.
The law on contentious-administrative matters also defines the acts that concern the relations with the Parliament as being acts issued by a public authority, when fulfilling its duties, provided by the Constitution or by an organic law, in the political relations with the Parliament [(article 2 paragraph 1 letter (k)].
- 9.
Commented by Bogasiu (2013, p. 160-16).
- 10.
Published in the Official Gazette of Romania, Part I, no. 316 of 9 May 2011.
- 11.
This situation is not unique. Thus, even in the UK a number of administrative jurisdictions were established, jurisdictions which settle more disputes than those addressed by the ordinary courts. However, the House of Lords remained the single supreme judicial authority for both jurisdictions.
- 12.
These concepts were used under the influence of the French contentious-administrative matters, where the request addressed to the administrative courthouse is called “appeal”. In Romanian law, the common meaning of the concept “appeal” is that of extraordinary remedy that can be exercised against a court judgment. Even the Law of the Contentious-Administrative uses the notion of “appeal” with this meaning.
- 13.
One might thus speak about “the sphere of legality conditions on opportunity-connected grounds”.
- 14.
Which sanctions power abuse.
- 15.
In Germany, the Code of administrative jurisdiction assigns to the judge the power to review acts adopted by exceeding the limits of discretion of the administration.
- 16.
The solutions that the court can adopt are set out in article 18 of the Law.
- 17.
The former regulation, contained in the Law no. 29/1990 on the contentious-administrative, did not cover this exception.
- 18.
Which provides that “If any inconsistencies exist between the covenants and treaties on fundamental human rights to which Romania is a party and internal laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favorable provisions.”
- 19.
According to which “Following the accession, the provisions of the constituent treaties of the European Union, as well as the other binding community regulations have precedence over opposite provisions of the national laws, complying with the provisions of the Act of Accession.”
- 20.
We would like to cite here, as an example, Decision no. 425 of 10 April 2008, published in the Official Gazette of Romania, Part I, no. 354 of 8 May 2008.
- 21.
For a critical presentation of the decision of the High Court of Cassation and Justice, please see Chiriac (2009, pp. 102–104).
References
Andreescu, Marius. 2014. Contribuţii ale doctrinei juridice române la fundamentarea principiului proporţionalităţii (Romanian Juridical Doctrine Contributions to Substantiating the Principle of Proportionality). Dreptul no. 10/2014: 97–108.
Bîrsan, Gabriela Victoria. 2009. Excepţia de nelegalitate. Jurisprudenţa Secţiei de de contencios administrativ ţi fiscal a Înaltei Curţi de Casaţie ţi Justiţie (The Plea of Illegality. The Jurisprudence of the Contentious-Administrative and Fiscal Department of the High Court of Cassation and Justice), 2007–2008, Bucharest: Hamangiu Publishing House.
Bogasiu, Gabriela. 2013. Justiţia actului administrativ. O abordare biunivocă (The Justice of the Administrative Act. A Two-Way Approach), Bucharest: Universul Juridic Publishing House.
Chelaru, Eugen. 2012. Drept civil. Persoanele (Civil Law. Persons), 3rd edition, Bucharest: C.H. Beck Publishing House.
Chiriac, Lucian. 2009. Excepţia de nelegalitate, mijloc de verificare a legalităţii unui act administrativ de către instanţa de contencios administrativ (Plea of Illegality, Means to Verify the Legality of an Administrative Act by the Contentious-Administrative Court). Dreptul no. 11/2009: 100–104.
Constitutional Court of Romania. 1994. Decision no. 1 of 8 February 1994, published in the Official Gazette of Romania, Part I, no. 69 of 16 March 1994.
Constitutional Court of Romania. 2006. Decision no. 574 of 19 September 2006, published in the Official Gazette of Romania, Part I, no. 855 of 18 October 2006.
Drăganu, Tudor. 2004. Câteva reflecții pe margina recentului Proiect de Lege a contenciosului administrativ (Some Considerations on the Recent Draft Law on the Contentious-Administrative). Revista de drept public no. 3/2004: 57–65.
High Court of Cassation and Justice. 2007. Decision no. 482 of 26 January 2007, the Contentious-Administrative and Fiscal Department.
High Court of Cassation and Justice. 2007. Decision no. 2579 of 18 May 2007, the Contentious-Administrative and Fiscal Department.
High Court of Cassation and Justice. 2008. Decision no. 2307 of 4 June 2008, the Contentious-Administrative and Fiscal Department. Buletinul Casaţiei nr. 3/2008: 83–84.
Iancu, Gheorghe. 2014. Drept constituţional ţi instituţii politice (Constitutional Law and Political Institutions), 3rd edition, Bucharest: C.H. Beck Publishing House.
Ionescu, Cristian. 2012. Actele Guvernului. Articolul 108 (The Acts of Government. Article 108). Revista de drept public no. 4/2012: 79.
Iorgovan, Antonie. 2004. Relaţiile dintre puterea executivă ţi puterea judecătorească prin prisma legii de revizuire a Constituţiei (The Relations between Executive Power and Judicial Power from the Viewpoint of the Law of Revision of the Constitution). Caietul ţtiinţific no. 6/2004: 31–32.
Iorgovan, Antonie. 2005. Tratat de drept administrativ (A Treaty on Administrative Law), IVth edition, Bucharest: All Beck Publishing House.
Iorgovan, Antonie and Tofan, Dana. 2001. Delegarea legislativă în România. Analiză în raport cu statele occidentale (Legislative Delegation in Romania. Analysis in Relation to Western States). Revista de drept public no. 1/2001: 62–78.
Ovidiu, Podaru. 2010. Drept administrativ. Actul administrativ (II) Un secol de jurisprudenţă, Bucharest: Hamangiu Publishing House.
Râciu, Iuliana. 2012. Procedura contenciosului administrativ. Aspecte teoretice ţi repere jurisprudenţiale (The Contentious-Administrative Procedure. Theoretical Aspects and Jurisprudential Milestones), Bucharest: Hamangiu Publishing House.
Rarincescu, Constantin. 1931. Contenciosul administrativ român (The Romanian Contentious-Administrative Matters), 2nd edition, Bucharest: Ed. Universală Alcalya & Co.
Săraru, Catalin-Silviu. 2014. Examen al deciziilor Curţii Constituţionale în materia Legii contenciosului administrativ nr. 554/2004 (Examination of the decisions of the Constitutional Court in the matter of Law no. 554/2004 on the contentious-administrative). Dreptul no. 10/2014: 197.
Tofan, Dana. 2006. Instituţii administrative europene (Administrative European Institutions), Bucharest: C.K. Beck Publishing House.
Trăilescu, Anton. 2006. Studiu comparativ asupra formelor contenciosului administrativ (A Comparative Study on the Forms of the Contentious-Administrative). Dreptul no. 3/2006: 111.
Vedel, Georges and Devolvé, Pierre. 1992. Droit administratif, Tome 1, 12- éme éd., Paris: PUF, quoted in: Iorgovan, Antonie. 2005. Tratat de drept administrativ (A Treaty on Administrative Law), IVth edition, Bucharest: All Beck Publishing House.
Vedinaş, Verginia. 2014. Drept administrativ (Administrative Law), VIIIth edition, revised and updated, Bucharest: Universul Juridic Publishing House.
Waline, Jean. 2008. Droit administrativ, 22e édition, Paris: Dalloz Publishing House.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Chelaru, E. (2017). On the Jurisdictional Control of the Acts of the Government of Romania. In: Arnold, R., Martínez-Estay, J. (eds) Rule of Law, Human Rights and Judicial Control of Power. Ius Gentium: Comparative Perspectives on Law and Justice, vol 61. Springer, Cham. https://doi.org/10.1007/978-3-319-55186-9_2
Download citation
DOI: https://doi.org/10.1007/978-3-319-55186-9_2
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-55184-5
Online ISBN: 978-3-319-55186-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)