Law No. 102/2023, which introduces a new series of changes in the field of granting permits for construction works, town planning and administrative proceedings (“the Law”), was published in the Official Gazette no. 322 of April 18, 2023. Although it was passed by the Romanian Parliament back in November 2022, the entry into force of the law was delayed by the wording of the objection of unconstitutionality, which was unanimously rejected by the Constitutional Court on February 22, 2023.

The new changes will enter into force within 3 days from the date of publication of the Law in the Official Gazette.

Construction and urban planning – Changes regarding the permit for construction works

The Act introduces a number of provisions on the publication of building permits aimed at ensuring that any interested parties are effectively informed.

According to the Law, after obtaining a construction permit, but before starting work, its owner must complete the following formalities:

a) note the construction permit in the land register of the corresponding building;

b) publish in a widely circulated newspaper the number and date of the permit, as well as the name of the investment target – the Law does not specify whether the newspaper should be national or local, but considering that potential persons interested in attacking the permit are part, as a rule, of the community, where an investment has been made, we consider sufficient publication in a widely circulated local newspaper; and

c) place the investment sign in a prominent place on the construction site, an obligation that already existed for investors under Order No. 63/1998 regarding the obligation to place the investment identification panel in a prominent place.

In addition to these publication methods, which are carried out at the expense of the owner, the authority that issued the permit is required to publish information on the main conditions that must be fulfilled within a maximum of 30 days from the date of issuance of the permit. Among the conditions considered mandatory for publication by the authority, we mention POT (percentage of land occupation), CUT (coefficient of land use), areas, and whether permission has been requested/received from the competent authority in the field of culture. heritage protection, according to the conclusion of the competent body of environmental protection. The content of the building permit is deemed to have been brought to the attention of the concerned public bodies on the day of completion of the last public formality, regardless of whether it is carried out by the owner or the authority.

In addition, the Law also introduces the possibility for the interested public and interested social bodies to familiarize themselves in the central office of the body that issued information on the main conditions for the performance of the relevant construction works, as well as any documents that are considered public.

Additional measures to ensure advertising are doubled by the regulation of some special conditions which interested public bodies can file a lawsuit for annulment of a construction permit or applications for auxiliary or main intervention in the following disputes:

a) in a situation in which a preliminary complaint must be filed (i.e. in a hypothesis in which a building permit No entered into civil circulation and did not give rise to legal consequences), interested public bodies must file a preliminary complaint in period of 30 days from the date of the last advertising formality.

At the same time, the deadline for submitting a request for cancellation, suspension, auxiliary intervention and main intervention is 60 days and starts from the date of receipt of the response to the previous complaint/the date of completion of the legal period during which the body had to formulate the response to the previous complaint.

b) if the previous complaint is not mandatory (a situation in which the construction permit entered civil circulation and caused legal consequences), the deadline for the submission of the above-mentioned requests by the concerned social bodies is 60 days and flows from the date of the last advertising formality.

In addition, in matters of urban planning, the Law introduces a special statute of limitations 1 year from the date of approval on appeal of decisions on approval of documentation on territory planning and town planning interested public bodies, by derogating from the general term of 5 years from the moment of approval provided for in Art. 64 par. (3) from Law 350/2001 on territorial development and urban planning.

Regulating these special conditions, the Law directly indicates the relevant social bodies. Thus, any other interested persons will be bound by the general terms in the case of administrative proceedings, as indicated below, in accordance with the general terms provided for in Art. 64 of the Law 350/2001 on the appeal of decisions on the approval of urban planning documents

Judiciary – Changes in administrative proceedings

The law also changes the three most used texts from Law no. 554/2004 of administrative proceedings (“Administrative proceedings“). The changes essentially relate to the terms of filing lawsuits for cancellation and suspension of administrative acts.

The deadline for filing a lawsuit is Art. 11

The first amendment concerns the time limit for filing a claim for annulment in an administrative court. The law introduces a new letter d (1) in Clause 11 of Art. (1), which determines that in the case of administrative acts, in respect of which the previous complaint does not concern May is mandatory, the 6-month statute of limitations for filing a claim for annulment starts from the date when the content of the act became known.

Although the new paragraph seems to talk about all documents excluded from the wording of the previous complaint (that is, all categories of documents listed in Article 7 paragraph (5) of the Law on Administrative Proceedings), it follows from the statement of motives of the Law that its initiators were specifically concerned with only one of these categories, namely the category individual acts, which can no longer be canceled, because they entered into civil circulation and gave rise to legal consequences. Indeed, this was actually the only category of documents for which the content of Art. 11 regarding the beginning of the 6-month period. This intention did not appear as such in the Law.

However, apart from this aspect, the moment chosen by the legislator – the date when the content of the act became known – in practice, some questions will probably arise:

a) the new provision does not differentiate the situation beneficiary under an individual act and what with the third – as a rule, in the philosophy of the law on administrative proceedings, for claims by third parties, the date when the existence or content of the act became known is established, and for claims filed by beneficiaries – the date of notification;

b) installation date of inquiry about the content of the act and for the beneficiary it may cause evidentiary complications – as far as the beneficiary is concerned, there must be a presumption of knowledge of the content of the act from the moment of its notification; But to what extent the beneficiary could rebut this presumption by contrary evidence remains to be seen;

c) many times, the date of knowledge of the content of the act is Previous the moment when the act becomes irrevocable as a result of entry into civil circulation and the generation of legal consequences – therefore, the application of this provision will lead in some situations to an overlap between the deadline for formulating a preliminary complaint and the deadline for formulating a claim for cancellation.

Suspension of execution of the act – Art. 14

The law contains two amendments regarding the action to suspend the execution of an administrative act, formulated separately:

a) The law introduces a period of 30 days to file a claim for suspension in accordance with Art. 14 for documents that can no longer be revoked

Perhaps the most dangerous of the changes and with the greatest practical impact is the limitation of the term of filing a claim for the suspension of acts that can no longer be canceled (because they have entered the civil circulation and caused legal consequences), giving rise to problems from the perspective of the right of access to justice. In practice, there are situations when one of the conditions necessary for suspension occurs – unavoidable damage after 30 days from the date of familiarization with the contents of the act. However, in these situations, after amendments to the Law on Administrative Proceedings, the injured person will no longer have access to the suspended claim provided for in Art. 14.

b) The law clarifies the moment from which the 60-day period for filing a claim for annulment begins – after the amendment, the injured person who resorted to the remedy provided for in Art. 14 will have to file a lawsuit for annulment of the administrative act within 60 days from the moment of submission of the suspension request

Although before the amendment, the Law “On Administrative Disputes” did not explicitly provide for the moment from which the 60-day period begins, there was an established interpretation (in particular, by decisions of the Constitutional Court) in the sense that the period begins from SECTIONsuspension request. After making changes, this moment will be replaced by the one PLACINGpetition for stay, greatly reducing the time available to an aggrieved person to formulate a claim for annulment.

Petition for suspension due to the main lawsuit – Art. 15

The last amendment also refers to the action on the suspension of an administrative act entered separately, but in accordance with Art. 15 of the Law on Administrative Proceedings, i.e after wording of the claim for annulment.

Before the amendment, the Judicial Procedure Act provided that such a motion for a stay could be filed at any time before the merits of the annulment action. The law shortens this period by specifying that the suspension requirement can be formulated in the maximum term is 60 days from the moment of initiation of the action for annulment.

CONCLUSIONS

As for the construction permit, the Law introduces new public formalities to inform the interested public about the content of the construction permit. These changes are intended to protect civil justice and put an end to situations where building permits are challenged in court for a long period of time compared to their issuance, and in many cases even at an advanced stage or even after construction work has been completed. In addition, the Law also introduces a number of special provisions regarding requests for cancellation of building permits or decisions on approval of urban planning documents submitted by interested public bodies.

In the matter of administrative proceedings, the changes seem minor, but they concern the texts that are most relevant and used in practice: the term for filing a claim for cancellation and the corresponding terms for a claim for suspension. They will apply to claims by any injured person (not only socially interested bodies) and to any type of administrative act (not only to acts issued in the field of construction and town planning).

Footnote:

(1) A detailed analysis of these changes can be found in the article Brief x-ray of the latest individual proposals to amend the Administrative Court Law adopted by the Romanian Parliament at the end of 2022, by Irina Suatean, published on the AUBD Forum – Legal Forum No. 1/2023 and available at : https://drept.unibuc.ro/documente/2023/AUBD/1,%202023,%202.%20Irina%20Suatean%20-%20Scurta%20radiografie%20a%20ultimelor%20discrete%20propuneri %20of%20modification%20of %20the%20Administrative%20Contentious%20Law.pdf

The article was signed by Irina Suătean (senior lawyer) and Ilinca Porojan-Gheajă (lawyer)