​Is the presidential decree suitable in principle in the order of administrative proceedings?

The aim is not to keep the reader in suspense, the answer observed in the jurisprudence of the High Court of Cassation and Justice and the Courts of Appeal is one. affirmative – the Presidential decree is a tool that can be used in administrative proceedings.

However, there are certain observations that need to be made to clarify the legal situations that can be addressed using this procedure.

First, the presidential decree should not have the purpose of suspending the administrative act. From our point of view, a presidential decree would be inadmissible in principle, the subject of which would be, for example, the suspension of an administrative act until a decision on the suspension of an administrative act is made in accordance with Art. 14 or Art. 15 of the Law on Administrative Proceedings No. 554/2004 (hereinafter “Law No. 554/2004“). We emphasize that reports on offenses are a separate subject, they are appealed in accordance with OG No. 2/2001 on the legal regime of offences. Without touching on this topic in detail, since it is not the purpose of this article, we will briefly note that in the case of reports on violations, from our point of view, presidential ordinances are acceptable in principle.

Secondly, it should, in principle, refer to temporary measures that relate to “secondary”, indirect consequences of an administrative act.

For example, Decision No. 2462/2012 of the High Court of Cassation ruled as follows:

“The petition regarding the presidential decree is acceptable in principleformulated in an administrative court, when its subject is not the suspension of an administrative act, but the adoption of temporary measuressuch as placing a temporary commitment on a party pending resolution of the case on its merits.

In this case, the plaintiff appealed to the administrative court due to the presidential decree on the obligation to oblige the defendant A.N. to temporarily remove, pending resolution of the action in the administrative court on the merits, references on the official ANI website regarding the applicant’s incompatibility status.“

Therefore, the considered administrative act was intended to establish the ANI non-compliance of a certain person. By presidential decree, the specified person requested to temporarily remove references to the state of incompatibility from the official website of ANI until the merits of the lawsuit are resolved in the administrative court.

Thus, it may be noted that the petitioner did NOT seek suspension of the administrative act or its direct effects, but sought an interim relief, which meant the removal of certain published references to the petitioner’s non-compliance status from the official ANI website.

The basis on which the presidential decree is acceptable can be found in Art. 28 of Law No. 554/2004, which aims to supplement the above-mentioned law with provisions of the Civil Procedure Code to the extent that they are not incompatible with the peculiarities of power relations between state bodies, on the one hand, and persons who have suffered in their legal rights or interests

In the same sense, the Court of Appeal of the city of Iasi by its decision no. 1098/2018:

“According to Art. 28 of Law No. 554/2004, the provisions of this law are supplemented by the provisions of the Civil Procedure Code, as they are not incompatible with the features of power relations between state bodies, on the one hand, and persons who have infringed rights or legitimate interests, the compatibility of the application of court-established norms of civil judicial proceedings when deciding the case.

The first court incorrectly recognized that the President’s decree is inadmissible in the case of administrative proceedings, being incompatible with the regime of consideration of administrative cases. In view of this aspect, the court believes that the Supreme Court has assessed that in certain situations this procedure is acceptable in administrative proceedings on this matter, being also decision no. 2462/2012, issued by the High Court of Cassation and Justice“

In the same sense, regarding the admissibility of the presidential decree in administrative proceedings, see Decision no. 5803/2022 of the High Court of Cassation and the Department of Administrative and Tax Disputes:

“Due to the application registered in the Court of Appeal of Constanta on 05/20/2022 under no. x/2022, applicant A. required by presidential decreecontrary to the requirements of the defendants GOVERNMENT OF ROMANIA, MINISTRY OF HEALTH, NATIONAL HOUSE OF MEDICAL INSURANCE AND NATIONAL AGENCY OF MEDICINES AND MEDICAL DEVICES OF ROMANIA, obliging the defendants to provide insurance to the plaintiff based on a medical prescription in a 100% compensation mode […] to the final calculation of file no. x/2022 is being considered in the Court of Appeal of Constanta, Department of Administrative and Tax Disputes

the same the request made through the presidential decree by the plaintiff A. was accepted against the defendants the Government of Romania, the Ministry of Health, the National Health Insurance Fund, the National Agency for Medicines and Medical Devices of Romania […]

From all these aspects, the court of judicial review considers that That’s right, the foundation judge accepted the request for the presidential decree […]

In conclusion, the Supreme Court considers that the criticism of the appellant-respondents, the Ministry of Health, the CNAS and the ANMDM regarding the non-compliance with the conditions of admissibility of the Presidential Decree is also unfounded, at the same time, the contested verdict was issued with the correct interpretation and application of the provisions of Art. 997 C. process. civil.

In this case, we note that we are in a situation where we are required to make preliminary payments prior to the final settlement of a substantial claim. We find ourselves in these circumstances in the presence of a motion that cannot be reached through an action for suspension, and, in particular, we have a benefit that the challenged administrative act does not offer to the plaintiff, the “indirect” effect of the administrative act. On the contrary, the imposition of a direct obligation by an administrative act on a subject of law will represent, for example, a direct effect that can be terminated by applying the procedure of suspension of action provided for by Law No. 554/2004.

A common situation in which presidential orders must be admissible in administrative proceedings is press releases. Some authorities, when ordering certain measures or applying sanctions to various legal entities or individuals, publish press releases through public relations departments.

We note that in most cases these press releases are not published in accordance with an administrative act or legal obligation, there is no direct obligation to publish a press release regarding the imposed sanction, but ultimately we are faced with an obligation to publish the decision on the application of sanctions.

However, wanting to present the high importance of the activities and measures assigned by the relevant authority, it is possible to end up with a distorted view of the situation or even spreading accusations that do not correspond to reality. referring to the sanctioned legal entity or individual (for example, legal entity A is sanctioned for actions B and C, but in a press release, due to error or enthusiasm, the authority announces the application of sanctions to A for actions B, C and D ).

In this case, given that the relevant press releases are not a direct consequence of an administrative act imposing sanctions or legal provisions (in a broad sense) that do not require the publication of a relevant press release, there is an open possibility for the order of the President’s order temporarily, pending the resolution of the dispute against the measures taken by the body, the specified press release should be withdrawn in order to prevent the dissemination of inappropriate information.

Spreading false information, in addition to affecting the reputation of the injured party, can have very serious consequences, for example in the case of individuals with a bad reputation (also called “public persons” in the judicial practice of the ECtHR) or, in the case of legal entities, in the field of public procurement, where the customer can, on the basis of public information, apply Art. 167 para. (1) lit. c) from Law No. 98/2016 on public procurement and exclude the specified legal entity from the procedure.

Of course, the above example, in which the press release clearly contradicts what is contained in the sanction act, and in which we claim the absence of any basis for the publication of the press release (not even in secondary or tertiary legislation, nor the presence of a provision in the administrative act on sanction of the type “the decision must be made public by issuing a press release“) there is one”to the point of absurdity» for an easier understanding of the reasons why the presidential decree in this case would be acceptable in principle. Admissibility would in principle exist even if the situation were not so obvious, but the face of the law must be scrutinized by the court.

In summary, administrative courts must carefully analyze the claims made by the plaintiff, and depending on their wording and what is required of the court, a presidential decree may in principle be admissible in administrative proceedings.

The article is signed by Adrian Zamfir, a lawyer at Filip & Company