Objective contentious matters in Romania and their unexplainable vulnerabilities

Ovidiu Podaru ()
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Ovidiu Podaru: Faculty of Law, Babes-Bolyai University, Romania.

Juridical Tribune - Review of Comparative and International Law, 2018, vol. 8, issue 2, 370-381

Abstract: The objective contentious matters should be a lethal weapon for the administrative acts challenged at the court specialised in this kind of issues, because, unlike the subjective contentious matters, they do not depend – or at least they should not depend – on the plaintiff’s (which is, by definition, a public authority) proving a subjective right or a personal legitimate interest injured by the administrative act. Relieved from this burden, the plaintiff’s task within an objective contentious matter should be easy: to come up with the proof that the case object contravenes a rightful rule with a superior legal force. In this case, the challenged act is annulled by the decision of the administrative contentious court and, as an expression of the public interest prioritising principle, it derives from the other one, which is more general, namely the principle of lawfulness. Nonetheless, at least three legal provisions of the Act no. 554/2004 – section 1, par. (3), section 3, par. (1) and section 28, par. (3) – highlight a few weaknesses of this type of contentious matters, either by conditioning them upon the fate of certain subjective contentious matters – which by definition are more fragile – or by placing the plaintiff, by virtue of the law, in a legal status inferior to the one that the plaintiff within a subjective contentious matter enjoys. And these weaknesses are surely worth being analysed, because so far neither the doctrine nor the case law seems to have at least noticed them.

Keywords: objective contentious matter; the Ombudsman; the Prefect; withdrawal of the case. (search for similar items in EconPapers)
JEL-codes: K19 K23 K41 K49 (search for similar items in EconPapers)
Date: 2018
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