Romania’s Administrative Litigation Law (Law no. 554/2004) provides citizens and public authorities with a broad range of legal tools to challenge unlawful administrative acts. Among these, the plea of illegality (excepția de nelegalitate) holds a special place, as it allows an indirect review of an act’s legality even where the act is not directly challenged through a principal claim.
- What is the plea of illegality?
Under Article 4 of the Law, the legality of an individual administrative act may be reviewed at any time by way of a plea raised within another set of proceedings—either at the request of an interested party or ex officio, where the court considers it necessary.
Unlike an action for annulment, which directly seeks to set aside an administrative act, the plea of illegality has an incidental nature: it does not annul the act, but only removes its effects in the case at hand.
For example, in civil or tax proceedings, a party may argue that an individual administrative act issued previously is unlawful. If the court finds that the outcome of the case depends on that act, it will rule on the plea—either by an interlocutory order or in the final judgment.
If the court finds the act unlawful, it will continue the proceedings without taking that act into account, as if it did not exist.
It is important to note that normative administrative acts (Government decisions, ministerial orders, regulations) cannot be challenged through the plea of illegality; they may be challenged only through an action for annulment, under the conditions set by the law.
- What are the limits of the administrative court’s review?
Not all administrative acts may be challenged in administrative litigation. Article 5 sets out exceptions to judicial review, namely:
- acts concerning relations between public authorities and the Romanian Parliament;
- military command acts related to internal military discipline and organisation;
- acts for which an organic law provides a different special judicial procedure (for example, certain acts in the tax or electoral fields).
In addition, the Law restricts the possibility of suspending the effects of an administrative act (as provided by Article 14) in exceptional situations—such as a state of war, siege, or emergency, or where the act concerns national defence or public order.
The purpose of these limitations is to maintain a balance between the need for judicial oversight and the imperative that the state continues to function effectively in crisis situations.
- What are administratively jurisdictional acts?
Another distinct category is that of administratively jurisdictional acts, regulated under Article 6. These are acts issued by administrative bodies that have jurisdictional powers (i.e., they resolve disputes between parties through a procedure similar to judicial proceedings).
Typical examples include a disciplinary commission decision regarding a civil servant or a decision issued by a tax appeals/contestations body.
The Law provides that such administrative jurisdictions are:
- optional—the party is not required to follow them;
- free of charge—they do not involve fees or costs.
An interested person may bypass the administrative-jurisdictional procedure and apply directly to the administrative court within 15 days from the communication of the act.
If the party has nevertheless chosen the administrative procedure but later wishes to withdraw, they may do so by notifying the relevant body and seizing the court within the same 15-day time limit.
- Conclusion
The plea of illegality and the judicial review exercised by administrative courts are fundamental safeguards for upholding the principle of legality in public administration. They ensure a delicate balance between a citizen’s right to defence and the need for the state to function efficiently, without institutions being paralysed by abusive litigation.
In order to use these tools correctly, a case-by-case analysis is essential. Consulting a lawyer specialised in administrative law can help you identify the most effective course of action and avoid missing statutory deadlines.
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