Law No. 554/2204, to Art. 1 paragraph 1 establishes that administrative acts, as acts issued in the regime of public authority, may be appealed “Any person who considers himself to be infringed upon in a right or a legitimate interest.”In scientific language it is said that in administrative proceedingshas any active procedural qualitya private person who justifies an interest in annulment of the act.

In this context, taking into account:

• on the one hand, Decision No. 12/2021 delivered in an appeal in the interest of law (RIL), by which the Supreme Court of Cassation and Justice (ICCJ) found that decisions approving PUZs are regulatory acts, and
• on the other hand, Decision No. 10/2015, issued by the Commission to resolve certain legal issues, by which the ICCJ established that decisions annulling normative acts also have consequences for individual administrative acts issued pursuant to them, which at the date of publication of the judgment of the decision on cancellation, contested in cases considered by courts,

this article attempts to establish whether and under what conditions there is, from a procedural point of view, an interest in the verification of the legality of the decision to approve the PUG, referring to the various stages at which the verification of the legality of the construction permit, i.e. an administrative act, can be issued separately on the basis of the relevant regulatory act.

Obviously, it is not enough as an individual “consider” the victim of an administrative actbut the court needs to analyze from an objective point of view whether this person’s perception of his own harm is procedurally correct or not.

And in order to conduct such an analysis, it is necessary to answer an extremely simple question: what personal and concrete practical benefit would the plaintiff receive if he succeeded in canceling the contested administrative act?

The fact is that it is about the need for identification personal and specific practical use follows not only from the general provisions of Art. 33 C. Fr. civil, as well as from the clear provisions of Art. 8 para. 11 of Law No. 554/2004, by which the legislator directly recognized the inadmissibility of the so-called “people’s actions”since it is established that: “Private law individuals and legal entities can formulate the requirements they refer to protection of the legitimate public interest only in the subsidiary company, to the extent that damage to the legitimate public interest logically follows from the violation of a subjective right or a private legitimate interest.”

Pursuant to Law No. 350/2001, the PUZ is an urban planning tool that coordinates the integrated urban development of certain areas in the area by correlating the integrated urban development programs of the area with the General Urban Planning Plan. PUZ establishes rules regarding the development mode, territory function, maximum permitted height, land use factor (LUT), percentage of land occupation (POT), removal of buildings from the route and distance from the side and rear boundaries of the plot, architectural characteristics of buildings, permissible materials.

As a result, we understand that the damage that the PUZ can cause to the subjective right or legitimate interest of a private person is not direct, but consists in creating a state of danger due to the possibility of issuing construction permits which is consistent with the humiliating rules established by the PUZ that the individual considers illegal.

As I showed from the very beginning, taking into account these characteristics of PUZ, Decision No. 1000 dated 20.12. 12/2021 (RIL), the ICCJ finally resolved the issue of the normative, individual or mixed nature of the PUZ approval decision, finding that it had normative character even in a situation where it actually regulates the legal regime of one land plot owned by one person.

Several legal consequences follow from the normative nature of the decision on the approval of the PUZ, of which, in order to check the condition of interest, we are most interested in the one that follows from the provisions of Art. 23 sentence I of Law no. 554/2004: “Final court decisions by which an administrative act of a regulatory nature is canceled in whole or in part they are binding and valid only for the future.“

Of course, we also have to take into account how the ICCJ Jurisprudence Panel interpreted these legal provisions in Decision no. 10/2015, establishing that: “Provisions of Art. 23 of the Law on Administrative Proceedings No. 554/2004, as subsequently amended and supplemented, is interpreted in the sense that a non-cancellation/final court decision, by which an administrative act of a regulatory nature was canceled in whole or in part, INITIATES ACTIONS ALSO REGARDING INDIVIDUAL ADMINISTRATIVE ACTS ISSUED ON ITS BASIS, which, on the date of publication by the court on the cancellation of the decision, are challenged in current cases by the resolution on the role of courts.”

We note that the Supreme Court quite rightly did not interpret in the sense that all individual administrative acts issued on the basis of a normative act, in respect of which nullity has been established, the legality of which is contested in pending cases, it is canceled automatically. The court operates with the concept “generates effects”in the sense that the court referred to the cancellation of an individual act will check whether it was legally notified with the reason of invalidity arising from the annulment of the regulatory act, and in the affirmative he will not consider that the judgment of annulment has effects only in the future, so he will admit the action. If, however, the court was not notified of such a reason for illegality, it will not be able to apply a court decision on the cancellation of a normative act, since such behavior will violate the principle of accessibility, enshrined in Art. 9 C. Fr. civil

Therefore, from the point of view of the analysis of the fulfillment of the condition of interest, we must identify the following situations that may arise in practice:

i. The decision to approve the PUZ is issued and appealed by a private person before issuing a building permit based on it – there will be a problem with this hypothesis relevance of direct interest, because if the construction permit has not yet been issued, it is possible to cause harm to a person; only on the condition that such a construction permit is issued, the state of danger created by the PUZ is realized; however, if we consider the final sentence of Art. 33 C. Fr. civ., it can be argued in the sense that the requirement to cancel the PUZ has in this situation precisely the role of preventing the occurrence of unavoidable damage by issuing a construction permit so that the condition of interest is fulfilled; however, we understand that if a building permit is issued during the settlement of the dispute which may prejudice the claimant and the claimant does not challenge it within the prescribed period or refer to it by way of a summons request or by the first deadline, as a reason as opposed to nullity, illegality of the PUZ, such a claim tends to remain devoid of interest, since it must exist not only at the time of filing the summons, but throughout the process;

ii. The decision on the approval of the PUZ is issued and appealed by a private person after issuing a building permit based on it, but before contesting this permit; in this case, the condition of having an interest at the time of application is fulfilled, it remains to be seen whether it exists during the process, depending on whether the building permit will be challenged within the term and whether or not the illegality of the PUZ is cited as a reason for invalidity;

iii. The decision on the approval of the PUZ is issued and appealed by a private person after the construction permit was issued on its basis and after the appeal of this permit; there is a condition of interest in this hypothesis only if it is confirmed that the claimant invoked the invalidity of the PUZ as a reason for illegality, through a summons request or no later than the first deadlinewhich is subject to verification in a separate legal proceeding, the subject of which is the invalidation of the normative act of approval.

In conclusion, we recognize that in litigation overturning PUZ approval decisions, an interest analysis can be conducted only by reference to the practical benefit that a private individual may derive from the PUZ’s revocation. AND this practical use cannot be other than revoking the building permit and, therefore, to prevent the construction of a building, the existence of which would be prejudicial to the plaintiff.

However, the procedure for resolving a claim for cancellation of a construction permit, an administrative act of an individual, independent nature, is fully subject to the rules established by the Code of Civil Procedure. Article 204 of the Code of Criminal Procedure imposes a civil penalty decay that the maximum time at which the claimant can amend his claim is the date on which the first period to which he legally relies is due. By virtue of the principle of availability (Article 9 part 2 – “The subject and boundaries of the process are established by the motions and objections of the parties”),the court may make a decision on the illegality of the construction permit exclusively with reference to the grounds of illegality referred to by the plaintiff, within the procedural period established by law. If the illegality of the construction permit has not been challenged as a consequence of the illegality of the PUZ, either in the same process or in a separate process, the possible cancellation of the PUZ will not bring any practical benefit to the applicantsince the owner of the building permit builds the house not on the basis of the PUZ, but on the basis of the building permit.

The article is signed by Dan-Raresh RODUCANU, Senior Partner ([email protected]), STOICA & Asociații.