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Curentul Juridic – Juridical Current
2014, Vol. 57, No. 2, pp. 46-53
ISSUES RELATED TO THE EXERCISE OF THE
LEGALITY CONTROL BY THE PREFECT IN THE
DECISIONS OF THE CONSTITUTIONAL COURT
author
Cătălin-Silviu SARARU
ABSTRACT: This article examines some aspects of the decisions made by the
Constitutional Court in the matter of the legality control exercised by the prefect on the
local government acts. The article analyzes the acts which form the subject of the legality
control exercised by the prefect, and the question which arises is whether the Prefect may
challenge the administrative contracts at the administrative court. The article also tackles
the theme of the law suspension of the administrative acts as contested at the administrative
court of prefect in the exercise of the legality control. Finally it highlights the necessity to
correlate the regulations that determine the competence of the prefect in the field of legality
control.
KEYWORDS: prefect, legality control, the Constitutional Court of Romania,
administrative contentious, administrative act, administrative contract.
JEL CLASSIFICATION: K23
1.
PRELIMINARY CONSIDERATIONS
Through the Constitution of 1991 the Constitutional Court was established in
Romania for the first time in its history, with the role of guarantor of the Constitution
supremacy. Subsequently, the Law no. 47/1992 was adopted, on the organization and
functioning of the Constitutional Court.
Since its establishment, the Constitutional Court has contributed by its decisions at
the reforming of the legal mentality for building a democratic society. Thus, the influence
of the Constitutional Court decisions has led to the manifestations of "a process of
constitutionalization of the law branches, which not only increase the prestige of the
Constitution but also the respect for the ideas and sustainability of its provisions"
(Vasilescu, 1999, p. 142).
Lecturer, Ph.D., Law Department, Bucharest University of Economic Studies, Member of the Society of
Comparative Legislation from Paris, President of the Society of Juridical and Administrative Sciences,
ROMANIA.
CURENTUL JURIDIC
47
During its work, the Constitutional Court has received a few exceptions of
unconstitutionality on the exercise of the legality control by the prefect over the local
government acts. In what follows we consider some aspects of Constitutional Court
decisions pronounced in order to solve these exceptions.
2.
THE ACTS THAT ARE SUBJECT TO LEGALITY CONTROL
EXERCISED BY THE PREFECT
In motivating the unconstitutionality exception its author has argued that the
provisions of Article 3(1) of the Law no. 554/2004 as amended by art. I, section 4 of the
Law no. 262/2007 amending and supplementing Law no. 554/2004 are contrary to Article
123 para. (5) of the revised Constitution "insofar as it interprets that the administrative
tutelage exercised by the prefect might exert on acts other than administrative acts issued
by local authorities, such as for example the acts issued in the civil, contractual or
employment legal relations". The Article 3(1) of Law no. 554/2004 contains the
following: "The prefect may challenge directly to the Administrative Court the acts issued
by local authorities if deemed unlawful; action is filed within stipulated in art. 11 para. (1)
which commences from the time at which the act was communicated to the prefect and
under the conditions provided by this law. Action brought by the prefect is exempt from
stamp duty". The Article 123 para. (5) of the revised Constitution stipulates that "the
Prefect may challenge, in the administrative court, an act of the county council, the local
council or the mayor, if he deems it unlawful. The contested act is suspended of law".
Through the Decision No. 482/2011 the Constitutional Court rejected this
unconstitutionality exception holding that:
"With regard to the provisions of Article 3 (1) of Law no. 554/2004, the Court notes
that, according to them, the Prefect may challenge directly to the administrative court the
administrative acts issued by local authorities if they consider them illegal and in
accordance with art. 123 para. (5) of the Constitution, "the Prefect may challenge, in the
administrative court, an act of the county council, the local council or the mayor, if he
deems it unlawful. The contested act is suspended of law". Therefore, the Court finds that
the challenged provisions of Article 3(1) of Law no. 554/2004 are a reiteration of
constitutional provisions and, therefore, criticism of their unconstitutionality is obviously
unfounded.
The argument of the unconstitutionality exception, according to which the criticized
text of the law is unconstitutional insofar as it interprets that the administrative tutelage
exercised by the prefect might exert on other acts than administrative acts issued by local
authorities, such as for example the acts issued in the civil, contractual or employment
legal relations, cannot be accepted as it is a matter of interpretation and application of the
law falling within the jurisdiction of the law court, and not of the constitutional court".
Similarly, the Constitutional Court ruled in Decision no. 1369/2011.
We emphasize that we do not share the view of the Constitutional Court, considering
the text of article 3(1) of Law no. 554/2004 is not really a reiteration of art. 123 para. (5)
of the Constitution.
Article 123 para. (5) of the Constitution refers to the prefect’s opportunity to
challenge before the administrative court "an act of the county council, the local council
or the mayor, if he deems it unlawful" given therefore any type of administrative act (both
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Cătălin-Silviu SARARU
unilateral administrative acts and bilateral - administrative contracts). The acts of private
management (civil law, commercial law, labor law, etc.) are not covered by art. 123 para.
(5) of the Constitution because the constitutional provision refers to the opportunity of the
prefect to challenge those acts at "the administrative court"; however, in disputes
concerning acts of private management, ordinary courts are competent.
Unlike the text of the Constitution, article 3(1) of Law no. 554/2004 refers to the fact
that the prefect may challenge before the administrative court "acts issued [o.u. C.-S.
Săraru] by local government authorities if they are deemed unlawful”, thus considering
only unilateral administrative acts, given that the bilateral acts shall be concluded, not be
issued. Also note that art. 123 para. (5) of the Constitution does not cover acts of the
county council president, unlike Article 3(1) of Law no. 554/2004, which uses a general
expression - "acts issued by local government authorities" – which include, of course, the
acts issued by the county council president. Therefore, article 3(1) of Law no. 554/2004
violates the provisions of the art. 123 para. (5) of the Constitution, by reduction of the
scope of the constitutional provisions.
It is interesting that the regulations of Article 3(1) of Law no. 554/2004 are not an
isolated case; that positive law includes many provisions restricting the administrative
tutelage control exercised by prefect only at the sphere of the unilateral administrative acts
issued by local government authorities, despite constitutional provisions of art. 123 para.
(5). Thus, the initial form of law no. 69/1991 on Local Government (published in the
Official Gazette of Romania, Part I, no. 238 of 28 November 1991) in art. 101 shows that
in the exercise of control on the legality of acts adopted and issued by local government
authorities and county, except the usual management, the Prefect may challenge, in the
administrative court, these acts if considered illegal. This provision has given rise to
controversies in the doctrine of that time (Apostol-Tofan, 2006, p. 324-327). It was argued
that the administrative contracts are covered by the concept of routine management acts
and they cannot be attacked by the prefect in any form or, on the contrary, that the Prefect
may challenge those acts only the common law court; it was also considered that the
notion of routine management acts covered acts of private management (civil and
commercial contracts) that could be challenged at a court of common law, as opposed to
acts of public management (the administrative contracts) that were challenged at the
administrative court (Dragoș, 2005, pp. 180-184; Săraru, 2009, pp. 7-50).
Law no. 215/2001 on local government and Law. 340/2004 on the institution of the
prefect, in the initial version, have maintained the exemption of routine management acts
from legality control by the prefect. Thus, art. 134 para. (1). b) of Law no. 215/2001
shows that the prefect, as representative of the Government, "exercises the control on the
legality of the administrative acts adopted or issued by local authorities and county
councils and the county council president, except those of the routine management acts".
It should be noted that, since the adoption of Law no. 215/2001, the administrative
doctrine suggested the amendment of art. 134 para. (1) b) for the purposes of abandoning
the qualification of the acts which may be challenged as administrative, in order to allow
control of contractual acts as well (Petrescu, 2002, p. 114).
During this time there has been a perceived need for legal clarifications of the
doctrine. The notion of routine management acts was described in the doctrine as a vague
concept which enables a totally subjective interpretation of the legal nature of those acts,
hence the conclusion that it is necessary to adopt provisions which are clear, precise, in
CURENTUL JURIDIC
49
order to eliminate any possibility of inconsistent interpretation of the meaning of that term
(Brezoianu, 2004, p. 437).
Following this doctrinal criticism, one will note a change in the vision of the law.
The phrase "acts of management" is rejected through the Law no. 554/2004 on
administrative contentious and subsequent amendments to the Law no. 340/2004.
Currently, the Law no. 340/2004 regarding the prefect and institution of the prefect,
republished in 2008, stipulates in art. 19 para. (1) letter e) that as representative of the
Government, the prefect verifies the legality of the administrative acts of the county
council, the local council or the mayor. Government Decision no. 460/2006 for the
application of certain provisions of Law no. 340/2004 regarding the prefect and institution
of the prefect "develops" the legal regulation showing that the specialized structures of the
prefect institution, in the exercise the powers of verification of the administrative acts
legality adopted or issued by local government authorities, can verify the legality of the
contracts concluded into by such authority, assimilated by the law of the administrative
acts, as a result of intimation by people who consider their rights or legitimate interest to
have been prejudiced. (art. 6 pt. 2 letter c).
We note, however, that Art. 6 point 2. c) of Government Decision no. 460/2006
added to the law (thus violating art. 108 (1) of the Constitution which provides that
"decisions are issued for the application of laws"), the assimilation of the administrative
contracts with the administrative acts is not mentioned by the Law no. 340/2004, being
mentioned only by the Law no. 554/2004. The assimilation is of exceptional nature, being
interpreted strictly (exceptio est strictissimae interpretationis), the applicability domain
being reduced to the regulations contained in Law no. 554/2004. Then verification of the
legality of the administrative contract is purposeless because Law no. 554/2004, as we
shall see, does not permit attacking the administrative contracts at the administrative court
by the Prefect, if he considers that they contain unlawful provisions.
Law no. 554/2004, as amended, stipulates in art. Article 3(1) that "The prefect may
challenge directly to the Administrative Court the acts issued by local authorities if
deemed unlawful; action is filed within the term stipulated in art. 11 para. (1), which
commences from the time when the act was communicated by the prefect and under the
conditions provided by this law. Action brought by the prefect is exempt from stamp
duty". Until settlement of the case, the contested act is suspended of law (de jure).
These provisions still leave room for interpretation as to whether or not the Prefect
may challenge the administrative contracts concluded by the local authorities at the
administrative court. Together with the initiator of Law no. 554/2004 we believe that from
the wording of the text of art. Article 3. (1), which refers to "acts issued" it goes without
saying that the legislator had in mind only the unilateral administrative acts (Iorgovan,
2006, p. 295). Here is how the legislator has missed another opportunity that could create
the necessary control over the legality of administrative contracts concluded by local
authorities.
Unlike the Romanian legislation in France, following the dictum "pas de tutelle sans
texte”(Pacteau, 2010, p. 112) - no tutelage without text [of law] - the State representative
in the territorial collectivities controls, under art. L3132-1 related to art. L3131-2 section 4
of the General Code of Local Authorities, the legality of administrative contracts
concluded by local authorities in communes, departments and regions on loans, public
procurement (except for contracts with a value below a threshold defined by Code) and
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Cătălin-Silviu SARARU
concession contracts for local public services and partnership contracts. The state
representative may notify the Administrative Court if it considers that an administrative
contract is contrary to law.
We believe that in Romania, de lege ferenda is also appropriate that the prefect could
challenge the administrative contracts in the contentious administrative, if it is considered
that they are infringing the legal provisions regarding the stages prior to the conclusion of
the contract or the conclusion, modification, interpretation, execution and termination of
the contract. Article 3(1) of Law no. 554/2004 should be completed by specifying that
"the prefect may challenge directly to the administrative court, the acts issued or
concluded by local authorities if they are deemed illegal". This change is necessary
because, as we pointed out above, the current regulation Art. 3(1) of Law no. 554/2004 is
unconstitutional, being contrary to Art. 123 (5) of the Constitution.
Further, the conditions for the exercise of legality control should be adapted de lege
ferenda to the specific of the administrative contracts.
The Law no. 554/2004 states that the Prefect may formulate the action within the
period of six months required by art. 11 para. (1). This is a limitation period, which may
be subject to suspension, interruption, or restoring the timeframe as provided in the Civil
Code in Book VI, Title I - The statute of limitation. It is hard to understand how an action
to protect the public interest may be subject to a limitation period. This provision is
unconstitutional. The revised Constitution provides in the Art. 136 para. (4) that the public
property goods are unalienable. A consequence of unalienability is the imprescriptibility
(provided by art. 861 para. (1) of the Civil Code). Thus under the conditions in which
these provisions would be applicable to administrative contracts, if a local authority
concludes a contract with a particular having as object the alienation of a public property
asset, the prefect will challenge this contract within 6 months from the communication of
that act to the prefect. However, this contract is affected by absolute nullity, and the action
for annulment brought by prefect should be indefeasible, otherwise art. 136 para. (4) of
the Constitution would be purposeless. If the prefect action designed to protect the public
interest in administrative contracts is subject to a limitation period, the question is how the
prefect can be a guarantor of law and maintain public order at the local level as required
by art. 1 para. (3) of Law no. 340/2004. We believe, therefore, that the exercise of legality
control of the administrative acts, unilateral or bilateral, should not be subject to a
limitation period.
3.
THE SUSPENSION OF LAW (DE JURE) OF ADMINISTRATIVE ACTS
CHALLENGED AT THE ADMINISTRATIVE COURT BY THE PREFECT IN
THE EXERCISE OF ADMINISTRATIVE TUTELAGE CONTROL
Through an exception of unconstitutionality raised before the Constitutional Court it
was argued that the provisions of Article 3(3) of the Law no. 554/2004 (which relates to
the suspension of law of the contested act by the prefect to the administrative court until
resolving the case) would be contrary to the provisions of the Constitution contained in
art. 21 para. (1) - (3) which guarantee the free access to justice and the right to a fair trial,
Art. 124 para. (2) under which the justice is unique, impartial and equal for all, and art. 6
of the Convention for the Protection of Human Rights and Fundamental Freedoms,
concerning the right to a fair trial. The exception of unconstitutionality sustains, in
CURENTUL JURIDIC
51
essence, that the application of legal provisions reached a situation where simple
formulating and submission to the competent court by the prefect's institution of an action
for annulment of an administrative act to cause the suspension of the effects of the
contested act, the court not being able to order on the merits of the application for
suspension or the need to adopt such a measure, "which can only have exceptional
character". The author states that, due to legal provisions criticized, "the control is no
longer performed by an impartial tribunal, but on the basis of the contested legal text, the
action brought by prefect is given a presumption of rationality/solidity, which leads to the
conclusion that the part no longer benefits from the situation of a fair trial". In addition,
the author argues that the contested provisions violate the right of free access to justice,
"since the parties are deprived of the ability to overcome the effects of the suspension,
operating under the law, by simply submission of the action to the administrative court".
By Decision no. 1156/2009 the Court rejected, we think rightly, this exception of
unconstitutionality. In the motivation the Court held that:
„Article 3(1) of the Law no. 554/2004 regulates the procedure for exercising the
prerogatives of administrative tutelage by the prefect, through the introduction at the
administrative court of the action provided for by art. 123 para. (5) of the Constitution, in
the case of the acts issued by the county council, the local council or the mayor, if it is
considered that they do not comply with the law. The paragraph (3) of Art. 3 of the same
law states that, pending resolution of the case, the contested act, which is a unilateral
administrative act issued by a public authority, is suspended by law/de jure. The Court
considers that, in this case, the suspension will last until the final and irrevocable
settlement of the case by the administrative court. Establishing that the enforcement of
administrative acts of whose legality has been challenged before the administrative court
by the prefect is suspended of law, the critical legal text does nothing more than
summarize the principle encapsulated in Art. 123 para. (5) the second sentence of the
Constitution, so that it cannot sustain its unconstitutionality".
Indeed, art. 123 (5) of the Constitution, amended in 2003, provides that "the
Prefect may challenge, in the administrative court, an act of the county council, the local
council or the mayor, if he deems it unlawful. The contested act is suspended of law [o.u.
C.-S. Săraru]”. In a future revision of the Constitution we consider that the second
sentence of this article, which refers to the suspension of law, this regulation is an obstacle
to real local administrative autonomy. The suspension de jure of the act can turn into a
baffling instrument of the activity of local authorities, which is often made on political
considerations. Thus, whenever the prefect has a suspicion on the legality of an
administrative act adopted by local government authorities, merely contesting the
administrative court will determine the suspension of the act, which will operate, in the
absence of express legal clarifications, until the settlement of the case.
According to Law no. 188/1999 on the Statute of civil servants, the prefect is high
civil servant (art. 12 letter C) and prohibited from being part of a political party (art. 44
(2). The political factors cannot, however, be removed from the activity of the prefect, as
he is the representative of the Government at a local level and acts in order to achieve the
aims included in the government program in the county, respectively in the Municipality
of Bucharest, according to art. 19 (1) letter b) of Law no. 340/2004 regarding the prefect
and the prefect institution. Therefore, we consider that the maintenance of suspension de
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Cătălin-Silviu SARARU
jure of the administrative act contested by the prefect at administrative court does nothing
more than act as an impediment to achieving genuine local autonomy.
In addition, in relation to art. 15 of Law no. 554/2004, the prefect has a privileged
position, he is not obliged to justify an imminently hazardous situation which would
motivate the suspension, unlike other applicants (Dragoș, 2009, p. 151).
We believe that all these negative aspects militate for the drop of the suspension of
law and in order to give the administrative court the right to determine whether the
suspension is appropriate or not based on concrete danger which affects the achievement
of the public interest.
4.
CONCLUSIONS
The exercise of legality control by the prefect on the administrative acts gave rise to
doctrinal and jurisprudential debate, including the lifting of unconstitutionality exceptions
before the Constitutional Court of Romania.
The prefect institution is a legal institution of tradition being established by Law
of the municipalities from April 1, 1864. In time, the prefect institution was given great
importance by princes, kings or governments that succeeded at the country leadership,
giving different powers, from a role of limited powers to head of the county, depending on
the changes in the law that established the position of the prefectures (Alexandru, 2005,
pp. 223-224). Tradition and prestige of this institution currently require that the
competence of the prefect in the control of legality should be well-defined by the law by
unambiguous rules and correlated regulations.
BIBLIOGRAPHY
Alexandru, I., 2005, (coord.), Drept administrativ, Lumina Lex, Bucharest.
Apostol-Tofan, D., 2006, `Unele consideraţii cu privire la controlul de legalitate exercitat
de prefect. Evoluţia legislaţiei în domeniu`, Caietul Ştiinţific. Secțiunea pentru științe
juridice și administrative, no. 8, pp. 321-340.
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CURENTUL JURIDIC
53
Law no. 47/1992 on the organization and functioning of the Constitutional Court,
published in the Official Gazette of Romania, Part I, no. 101 of May 22, 1992,
republished in the Official Gazette of Romania, Part I, no. 807 of December 3, 2010
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340/2004 regarding the prefect and institution of the prefect, published in the
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Romania, Part I, no. 365 of 29 May 2007, as amended.
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° 85 du 9 avril 2000) subsequently he had suffered many changes.
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