The Constitutional Court (“CCR/Court”) brings back into focus the delicate issue of the scope of the effects of the annulment of a normative administrative act, through Decision No. 208/2025, after many years in which case law followed a uniform line, without distinctions or nuances, as a result of the binding interpretation given by Decision No. 10/2015 of the High Court of Cassation and Justice (“ÎCCJ”).
The provisions of Article 23 of Law No. 554/2004 expressly state only that the annulment of normative administrative acts has generally binding effects only for the future. The central legal issue under consideration concerns the interpretation of this text of law from the perspective of the scope of the effects produced by the annulment of a normative administrative act (or a provision of such an act) by a final court decision: does the annulment of the normative administrative act have effects exclusively on individual administrative acts issued after the publication of that final decision, or also on those issued previously, but which, at the date of publication of the court decision annulling the normative administrative act, are being challenged in cases pending resolution?
Basing its solution on a parallel between the effects of admitting an exception of unconstitutionality and the effects of admitting a request for annulment of a normative administrative act, on the right of access to a court and evoking the res judicata effect of the final court decision on annulment, the supreme court opted, starting in 2015, for the second interpretation, noting that:
“The provisions of Article 23 of Administrative Litigation Law No. 554/2004, as subsequently amended and supplemented, shall be interpreted as meaning that a final/definitive court decisionfinal court decision annulling in whole or in part an administrative act of a normative nature also has effect on the individual administrative acts issued on the basis thereof which, at the date of publication of the court decision annulling them, are being challenged in cases pending before the courts.”
Asked by the Ombudsman to review the constitutionality of the law as interpreted by the High Court of Cassation and Justice, the Court changed its perspective: it held that the solution adopted by the supreme court violated the principle of legal certainty and infringed the right to a fair trial, creating the conditions for the rigid application of the law, which is why it upheld, by a majority opinion, the exception of unconstitutionality.
In reaching this decision, the Court held that the interpretation given by the High Court of Cassation and Justice attributes an absolute character to the principle of annulment of the subsequent act and obliges the courts, regardless of the particularities of the administrative acts or the specifics of the dispute in administrative litigation, to issue predetermined solutions in cases concerning the annulment of individual administrative acts, issued on the basis of a normative act annulled by a final court decision and pending before the courts at the time of publication of the annulment decision.
The Court also held that such an approach undermines the principle of legal certainty, as a fundamental value of the state, which implies that “citizens must be protected against a danger that comes from the law itself, against an insecurity that the law has created or risks creating, by requiring that the law be accessible and predictable.” This principle must protect the bona fide holders of rights who have relied on the presumption and appearance of legality of the administrative act on the basis of which those rights were recognized.
Consequently, the Court has held that, in order to ensure a balance between the principles of legal certainty and legality, it is necessary to examine whether and under what conditions the individual administrative act should be annulled in each such dispute, by reference to all the specific circumstances of the case (i.e. the specificity of the administrative act, its effects) and by balancing public and private interests.
The decision to uphold the exception of unconstitutionality, as well as the Court’s reasoning, have a number of important practical consequences for disputes concerning the annulment of an individual administrative act following the annulment of the normative administrative act on which it was based, particularly in the real estate sector.
Firstly, the annulment of a normative administrative act (i.e., urban planning documentation such as a PUZ/PUG) does not directly and automatically entail the annulment of the individual administrative act issued on its basis (i.e., the building permit), for the simple reason that, on the date of publication of the final decision to annul the normative act, an appeal against the individual act was pending before the courts.
Secondly, the Court’s decision should not be understood in any way to mean that all individual administrative acts issued on the date when the normative administrative act had not yet been annulled by a final decision remain automatically valid, invoking the need to examine the legality of the individual administrative act exclusively by referring to the provisions in force on the date of its issuance.
On the contrary, as the Court held, “it is incumbent upon the judge hearing the case […] to examine, in order to rule on the action for annulment of the administrative act […], all the factual and legal circumstances of the case in the light of the principles of legality, legal certainty, and legitimate expectations, with a view to fairly reconciling the competing interests in the case, so that the solution reached reflects justice, the supreme value in the state, according to Article 1(3) of the Constitution.”
The reference decision handed down by the Constitutional Court marks a paradigm shift that will have important practical consequences in disputes seeking the annulment of an individual administrative act following the definitive annulment of a normative administrative act, with the courts analyzing all the legal grounds invoked, striking a fair balance between the principle of security and the principle of legality.
An article signed by Andreea Stoica, Managing Partner – astoica@stoica-asociatii.ro – and Mircea Vasile, Junior Lawyer –mvasile@stoica-asociatii.ro – STOICA & ASOCIAȚII
