Parts III–IV

This study aims to provide a critical analysis of the new regulations concerning the exception of illegality, introduced into the Administrative Litigation Law No. 554/2004 by Law No. 76/2012 for the implementation of Law No. 134/2010 on the Code of Civil Procedure.In carrying out this analysis, we considered it useful to present both the historical evolution of the legislation and the practice of the administrative courts, which has been guided by certain controversial decisions of the High Court of Cassation and Justice.Also noteworthy is the evolution of the legal “conflict” between the legislature and the Romanian Supreme Court, the latter having preferred—when ruling on the scope of the exception of illegality—to set aside the application of certain provisions of Law No. 554/2004, as amended, on the grounds that they were inconsistent with EU regulations and the case law of the Court of Justice in Luxembourg (formerly the Court of Justice of the European Communities), as well as with the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as developed and explained in the relevant case law. Upon analyzing the new provisions regarding the exception of illegality, established by Law No. 76/2012, we conclude that they introduce inappropriate solutions and, in fact, represent a step backward compared to the previous regulations.The arguments leading to this “verdict” are set forth in detail; the main issues under discussion relate to the admissibility of the exception of illegality for normative administrative acts, the removal of jurisdiction from administrative courts, avenues of appeal, the summons of the issuer of the act, and so on.

Keywords: exception of illegality, administrative litigation, Law No. 554/2004, Law No. 76/2012, Law No. 262/2007, administrative act, civil procedure, ECHR, Court of Justice of the European Union, High Court of Cassation and Justice, Constitutional Court, case law, jurisdiction, retroactivity.