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Suspension of administrative acts. Appearances of illegality. Case law

The suspension of administrative acts is an exceptional measure, the courts being very strict in analyzing the legal conditions necessary to be met in order to order such a measure.


The strict approach of the courts is fully justified: the continuous admission of requests for suspension would empty the enforceability of administrative acts and generate a real blockage of the public administration.


However, there are not a few cases in which the measure of suspension is imposed, the reasons for illegality being so obvious that a contrary solution would seem absolutely inexplicable.


Such an example is illustrated by the Bihor Court, through a recent decision, pronounced on October 4, 2023, by which the court ordered the suspension of some tax decisions (i.e. administrative-fiscal acts) issued by a local fiscal authority, in the context of identification of several appearances of illegality:


(i) The reasoning of the tax decisions did not seem to be appropriate;


(ii) There is a doubt regarding the correct fulfillment of a prior procedure for notifying the taxpayers-claimants, an aspect that could have consequences on the validity of the tax decisions;


(iii) The tax decisions seemed to violate final court decisions previously obtained by the claimants against the public authority.


All these reasons authorized, according to the Bihor Court, the suspension of the tax decisions.


The Romanian jurisprudence has revealed, over time, several cases of flagrant illegality, likely to justify the suspension of administrative acts. Such reasons "were retained by the High Court as the issuing of an administrative act by an incompetent body or exceeding its competence, the administrative act issued on the basis of some legal provisions declared unconstitutional, the lack of reasons for the administrative act, the important modification of the administrative act in the way of preliminary administrative procedure (significant reduction of the amounts retained as additional budgetary obligations) etc.".


However, it is important to note that the appearance of illegality is not sufficient to obtain a suspension, the injured person having to prove the existence of "imminent damage", in the sense of Law no. 554/2004 of the administrative litigation. However, the presentation of a flagrant case of illegality often eclipses the requirement of imminent harm.


We remind you that Fabian Cretu Law team is specialized in this type of procedures, obtaining multiple solutions of suspension of administrative acts throughout our activity.


For more information you can write to us at the e-mail address fabian.cretu@fcretu-law.com.





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