Is the prior complaint mandatory before going to the administrative litigation court?

As a general rule, yes. Before addressing the court you must file a prior complaint with the issuing authority or with the hierarchically superior authority, asking for the revocation or amendment of the act. There are, however, situations where the prior complaint is not mandatory (for example, in certain cases of unjustified refusal or when raising the plea of illegality in other proceedings), so the applicable legislation and recent case law should be checked carefully.

What can I do if the authority does not reply to the prior complaint?

If the authority remains silent after the expiry of the legal reply period, its silence is treated as an unjustified refusal to decide on the application. In this situation, you may bring an action in administrative litigation, provided the statutory time limits under Law no. 554/2004 are complied with.

Can I suspend the execution of an abusive administrative act until the case is decided?

Yes. You may request the court to suspend the execution of the act if you prove both a well-justified case (serious doubts about its legality) and an imminent damage (a serious, hard-to-repair harm that would occur if the act continues to produce effects). The suspension application may be lodged together with the action for annulment or separately, within the time limit laid down by Law no. 554/2004.

What is the plea of illegality of an administrative act?

The plea of illegality is a defence by which the lawfulness of an individual administrative act is challenged in the context of another court case, without starting separate administrative litigation proceedings. The court hearing the main case refers the plea to the competent administrative litigation court. If the plea is upheld, the act is set aside only in that case (inter partes effects), without being annulled with general effects.

Annulment of abusive administrative acts in Romania

Q: What is, legally, an abusive administrative act?

Strictly speaking, Romanian law does not define a separate category of "abusive" acts. It regulates unlawful administrative acts and excess of power. An administrative act is considered abusive when it breaches applicable legal provisions or when the authority exercises its margin of appreciation with excess of power, unjustifiably infringing the rights or legitimate interests of the injured person.

Q: How long do I have to seek the annulment of an abusive administrative act in Romania?

As a rule, you must file a prior complaint within 30 days from the communication of the act, with the possibility of extending up to 6 months for well-justified reasons. The action for annulment is normally lodged within 6 months from receiving the reply to the prior complaint, from the unjustified refusal to decide on the application, or from the expiry of the authority's reply period. For well-justified reasons, an action may be lodged after this 6-month period, but not later than 1 year.

Q: Can I obtain damages if an abusive administrative act has caused me loss?

Yes. In addition to the annulment of the act, you may ask the court to order the public authority to pay material and non-material damages for the loss suffered. If you initially sought only annulment, you may later bring a separate action for damages, within the limitation period laid down by Law no. 554/2004.

This article is for general information only and does not constitute legal advice. Concrete situations must always be analysed individually, together with a lawyer specialised in administrative and administrative litigation law.

1. What does an “abusive administrative act” actually mean?

In everyday language, people talk about an “abusive administrative act” when a public authority issues a decision that is clearly unfair or disproportionate for the person concerned. Legally, the idea of “abuse” is translated mainly into illegality or excess of power within the meaning of Law no. 554/2004 on administrative litigation.

1.1. The legal definition of an administrative act

Law no. 554/2004 defines an administrative act as a unilateral act, of an individual or normative nature, issued by a public authority, in the exercise of public power, for the organisation of the execution of the law or for the concrete execution of the law, which gives rise to, modifies or extinguishes legal relations.

In short, an administrative act:

is issued by a public authority (town hall, local/county council, ministry, ANAF, inspectorates, regulatory authorities, etc.);
is unilateral (it is not a contract, but a decision imposed by virtue of public power);
may be of an individual nature (it concerns a person or a determined number of persons) or normative (it lays down general rules – regulations, decisions with general applicability);
produces legal effects (creates, modifies or extinguishes rights and obligations).

Legal doctrine and case law develop these ideas, explaining in detail the differences between individual and normative acts and the role of each in the relationship between the administration and private persons.

1.2. What is excess of power and how does it relate to “abuse”?

Law no. 554/2004 expressly introduces the notion of “excess of power”. This means exercising the discretionary power of public authorities by exceeding the limits of their legal competence or by infringing citizens’ rights and freedoms.

Excess of power often occurs when:

the authority applies a sanction in a disproportionate way (for example, the maximum fine without a reasonable justification);
it arbitrarily differentiates between persons in similar situations (different treatment without an objective basis);
it refuses to examine on the merits a lawfully submitted request (“unjustified refusal”);
it uses its margin of appreciation for a purpose other than that laid down by law.

In practice, when people speak about an “abusive administrative act”, in administrative litigation they typically invoke the illegality of the act (non-compliance with the law) and/or excess of power (abuse in the exercise of competence).

2. Which administrative acts can be annulled and what CANNOT be challenged?

Law no. 554/2004 lays down a general principle: any person who considers themselves harmed in a right or in a legitimate interest by an administrative act or by the unjustified refusal to resolve an application may ask the court to annul the act, recognise the right and award damages.

However, there are also acts that cannot be challenged in administrative litigation, such as:

administrative acts of a political nature concerning relations with Parliament;
acts of command with a strictly military character;
acts for which an organic law lays down another exclusive judicial procedure;
certain acts relating to a state of war, siege, emergency or national security, which can be challenged only for excess of power.

In all other cases, the vast majority of individual acts (tax decisions, mayor’s orders, decisions rejecting applications, disciplinary sanctions in the public sector, etc.) can be challenged in court, as well as many normative acts (regulations, council decisions with general applicability), each with its own procedural particularities.

3. Who can ask for the annulment of an abusive administrative act?

The circle of persons who may bring an action is relatively broad. In addition to the injured person, the law allows other subjects to bring cases before the administrative litigation courts.

Natural or legal persons harmed in a right or in a legitimate private interest (for example: challenging a building permit issued in breach of minimum distances, challenging an unlawful ANAF decision, etc.).
A person harmed by an individual act addressed to another person (for example: the neighbour affected by a permit issued for another owner).
The Ombudsman, where he/she considers that the illegality of an act or the refusal of an authority cannot be removed otherwise than through the courts.
The Public Prosecutor’s Office, the Prefect and other authorities with a role in defending the public interest, under the conditions laid down by special laws.

4. The first (usually) mandatory step: the prior complaint

Before going to court, the law generally requires the filing of a prior complaint directly with the authority that issued the act or with the hierarchically superior authority. This is a written request asking the authority to reconsider the act and to revoke or amend it.

4.1. The 30-day time limit (and the 6-month maximum)

As a rule, the prior complaint must be lodged within 30 days from the date the individual act is communicated or from the date on which the person became aware, by any means, of its content. For well-justified reasons, the prior complaint may be lodged after this period, but no later than 6 months from the date on which the person became aware of the act.

Legal doctrine and practice stress that these time limits have the nature of limitation periods, which means that once they have expired, the right to bring an action on this avenue may be lost.

4.2. When the prior complaint is not mandatory

The obligation to go through the prior administrative procedure has been nuanced in the law and case law, in particular for:

unjustified refusal to decide on an application – certain decisions of the High Court emphasise that, in some situations, a new prior complaint is not required in order to challenge the refusal;
special situations governed by sector-specific laws (for example, tax, public procurement, competition);
the plea of illegality, where going through the prior complaint is not required in order to raise the plea in another ongoing case.

5. Time limits for bringing an action before the court

After the prior complaint (or in cases where the law does not require it), the next step is the action in administrative litigation, whereby the claimant seeks the annulment of the abusive administrative act.

5.1. The general 6-month time limit

As a rule, the action seeking the annulment of the individual administrative act must be brought within 6 months from one of the following dates:

the date on which the reply to the prior complaint was communicated;
the date on which the unjustified refusal to resolve the application was communicated;
the date of expiry of the legal reply period (when the authority remains silent);
the date on which the person concerned became aware of the content of the act, in certain situations.

For well-justified reasons, the application for annulment of the individual act may be brought after the 6-month period, but no later than 1 year from the relevant moment (communication, becoming aware, etc.).

5.2. Normative acts and special time limits

In the case of normative administrative acts, the legality review may be exercised through an action for annulment, and the time limits are calculated from the date on which the applicant became aware of the act. In practice, given the general and continuous nature of such acts, courts tend to interpret these time limits more flexibly than for individual acts.

In addition, certain special laws (tax law, public function, urban planning, public procurement, etc.) may provide for shorter time limits or specific procedures, which must be checked in each case before lodging an action.

6. How does an administrative litigation case unfold?

Currently, administrative litigation cases are heard in the first instance mainly by the administrative and tax litigation sections of the tribunals, with appeals before the courts of appeal, according to the rules on jurisdiction in Law no. 554/2004 and the Code of Civil Procedure.

By the action, the claimant may request, cumulatively:

the annulment, in whole or in part, of the abusive administrative act;
an order requiring the authority to issue an act, to carry out an administrative operation or to expressly decide on an application (in the event of an unjustified refusal or silence);
compensation for material and/or non-material damage suffered (damages);
suspension of the act until the case is finally decided (if not already requested separately).

The court will verify, on the basis of the evidence submitted, whether the act is lawful and whether the administrative power has been exercised in compliance with the principles of legality, proportionality and non-discrimination. As a rule, the review is limited to legality, not to expediency (opportunity), but the notion of excess of power allows some control over how the margin of appreciation has been used.

7. Suspension of the execution of the abusive administrative act

An administrative act normally produces immediate effects, even if it is challenged (“self-enforcement” of administrative acts). For this reason, Law no. 554/2004 allows the injured person to request the suspension of the execution of the act, pending the final decision on the action for annulment.

7.1. Conditions for suspension

Suspension may be ordered by the court if the following conditions are met cumulatively:

there is a well-justified case – in other words, serious doubts about the legality of the act; and
there is an imminent damage – the risk of material damage or serious disruption to the functioning of a legal person or authority, which would be difficult or impossible to repair later.

Legal doctrine and case law underline the exceptional character of suspension: the administrative act is presumed to be lawful, and suspension is granted only when these conditions are clearly fulfilled and duly proven.

7.2. Time limit for the application for suspension

Recent amendments to Law no. 554/2004 introduced a time limit for applications for suspension: they may be lodged together with the main action or by separate action within a maximum of 60 days from the date the action for annulment is brought.

8. The plea of illegality – an alternative to direct action

In addition to the direct action for annulment, Law no. 554/2004 regulates the plea of illegality (Article 4), which allows the legality of an individual administrative act to be challenged in the course of other proceedings already pending (for example, in a civil, labour or tax dispute) without the need to open a new case before the administrative litigation court.

Key features:

it generally concerns individual administrative acts (normative acts may not be subject to the plea of illegality, but only to an action for annulment);
it is raised before the court hearing the main case; that court then refers the plea to the competent administrative litigation court;
if the plea is upheld, the act is set aside only in that case (effects inter partes), without being removed from the legal order for everyone.

9. Damages for loss caused by an abusive act

The annulment of an abusive administrative act is often only part of the reparation. The law allows the injured person to claim damages for the material and non-material loss caused by the unlawful act or by the unjustified refusal of the authority.

If the injured person initially requested only the annulment of the act, without also claiming damages, the time limit for bringing a separate action for damages is, in principle, 1 year from the date on which the person knew or should have known the extent of the loss.

10. Practical examples of abusive administrative acts

Without claiming to cover all the situations that occur in practice, a few typical categories of administrative acts that are frequently challenged for illegality or excess of power can be mentioned:

Urban planning and construction – permits issued in breach of planning regulations, permits refused without proper justification, demolition orders without a solid legal basis;
Tax matters – tax assessment decisions issued in breach of tax procedural rules or based on arbitrary interpretations of the law;
Civil service and public sector pay – decisions on disciplinary sanctions, demotions, refusals to enforce a judgment or an agreement;
Public services – decisions on access to or conditions for the provision of regulated services (water, energy, public transport, social services, etc.);
Local regulations – decisions of local councils or regulations that breach the law, the Constitution or fundamental rights;
Unjustified refusal to decide on an application (for example, a failure to respond to an application for documents, an unjustified refusal to refund a tax, etc.).

11. Why the assistance of an administrative litigation lawyer matters

Administrative litigation is a technical field, with strict rules on time limits, jurisdiction and the content of applications. A seemingly minor procedural error (for example, an incomplete statement of claims, failure to observe a time limit or to submit a key piece of evidence) can lead to the dismissal of the action.

A lawyer with experience in administrative litigation can:

assess whether the act is genuinely unlawful or merely unfavourable but legal;
choose the appropriate strategy: prior complaint, direct action, plea of illegality, application for suspension, claim for damages;
identify relevant evidence (documents, correspondence, applicable legal provisions, case law of the High Court of Cassation and Justice and of the courts of appeal);
build legal arguments based on Law no. 554/2004, relevant sector-specific laws and recent case law.

In addition, where a major public interest is at stake (planning, environment, public services), a lawyer can coordinate the individual action with other steps (complaints to the Ombudsman, the Prefect, the Public Prosecutor’s Office, etc.).

12. Conclusions: key steps if you want to annul an abusive administrative act

Summarised in practical terms, the main steps are:

Identify the act – obtain the official copy, check the date of communication and the legal basis relied upon;
Check the time limits – make sure you are within the time limits for the prior complaint (30 days / 6 months) and for the action for annulment (6 months / 1 year);
File a well-reasoned prior complaint, citing legal arguments and attaching documents; explicitly request the revocation or amendment of the act;
Prepare the action in administrative litigation – determine the heads of claim (annulment, order requiring the authority to act, damages, suspension);
Consider applying for suspension, especially where the act produces hard-to-reverse effects;
Consider the plea of illegality if your main dispute is in another field (civil, tax, labour, etc.) but depends on the lawfulness of an administrative act;
Consult a specialised lawyer to maximise your chances of a favourable outcome.

In everyday language, “abusive” usually means unlawful or disproportionate. From the perspective of administrative litigation, the annulment of an abusive administrative act requires demonstrating, before the court, the act’s illegality or excess of power, within the time limits and in the manner laid down in Law no. 554/2004.

Frequently asked questions about the annulment of an abusive administrative act

1. What is, legally, an “abusive administrative act”?

Strictly speaking, the law does not define a separate concept of “abusive act”. It speaks about unlawful administrative acts and excess of power. An act is considered abusive when it breaches applicable legal provisions or when the authority exercises its margin of appreciation with excess of power, unjustifiably infringing the rights or legitimate interests of the injured person.

2. How long do I have to seek the annulment of an abusive administrative act?

As a rule, you must file the prior complaint within 30 days from the communication of the act (with the possibility of extending up to 6 months for well-justified reasons), and the action for annulment must be lodged, in principle, within 6 months from the reply to the prior complaint, from the unjustified refusal or from the expiry of the legal reply period. For well-justified reasons, the action may also be brought after these 6 months, but not later than 1 year.

3. What can I do if the authority does not reply at all to the prior complaint?

If the authority remains silent and does not reply within the legal time limit, its silence is treated in practice as an unjustified refusal. In this situation, you may bring an action in administrative litigation once the time limit for reply has expired, without waiting indefinitely for a response.

4. Can I ask for the effects of the act to be suspended until the end of the case?

Yes. You may ask the court to suspend the execution of the act if you can show that there is a well-justified case (serious doubts about the legality of the act) and an imminent damage. The application for suspension may be lodged together with the action for annulment or separately, within the time limit laid down by law.

5. What is the plea of illegality and when is it useful?

The plea of illegality is a defence mechanism by which the lawfulness of an individual administrative act is challenged in the context of another case (for example, a civil, tax or labour dispute). The court hearing the main case refers the plea to the competent administrative litigation court. If the plea is upheld, the act can no longer be relied on in that case, but it is not annulled generally for all persons.

6. Can I obtain compensation if an abusive administrative act has caused me damage?

Yes. In addition to annulment, you may ask the court to order the public authority to pay material and non-material damages for the loss suffered. If you initially sought only annulment, you may subsequently bring a separate action for damages, within the limitation period laid down in Law no. 554/2004.

7. Do I have real chances of winning a case seeking the annulment of an abusive act?

Your chances depend on: the nature of the act, the legal grounds of illegality (breach of a clear rule or excess of power), compliance with time limits, the evidence available and relevant case law. Administrative litigation is, by definition, a review of legality – if you can demonstrate, through documents and legal arguments, that the act breaches the law or goes beyond the limits of the authority’s margin of appreciation, your chances increase. That is why consulting a specialist lawyer and building the case carefully are essential.