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Authors: ANDREEA-CARLA LOGHIN.
Published Online: 2021-06-25
Published Print: 2021-06-30
pp. 42-103
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Under the Romanian constitutional provisions and the principle of the hierarchy of legal norms, normative administrative regulations cannot enforce rules in areas that are the exclusively subject to the organic law (according to art. 73 of the Constitution) and, insofar as this would happen, the law must have priority before the court, and not an illegal act, because, art. 124 of the Constitution states that ‘judges are subject only to the law.’ The Romanian Superior Council of Magistracy is the administrative body with attributions recognised by law in matters related to magistrates’ careers: It can adopt normative administrative acts and regulate specific procedures for organising competitions to promote magistrates. To the extent that an organic law allows it to establish, by decision, rules of administrative litigation, there is a conflict of regulations between such a normative administrative act and Law no. 554/2004 of the administrative contentious – lex generalis in this matter. Having been notified with the settlement of an appeal, the Romanian High Court of Cassation and Justice seems to ignore the constitutional principles, raising the normative administrative act to the rank of ‘law’ in order to exclude the application of the organic law on administrative litigation.The rule provided by article 2 paragraph (1) letter h) of Law no. 554/2004 states that the administration must respond to an individual’s request within 30 days. The regulation of the Romanian Superior Council of Magistracy in question establishes a term of 90 days in which the one who was declared admitted to the competition, without having been classified on a place that would have allowed him/her to occupy one of the places for which he/she competed, can capitalise the results of the contest in order to be promoted, if, during this time, a place is vacated at the court for which he/she opted. Interpreting this term in a surprising and, to some extent, ambiguous manner, the Romanian High Court seems to give it the same legal nature as the term set up by the organic law on administrative litigation, excluding the latter’s applicability. This study examines the legal nature of the 90-day time limit and its place in the logic of time limits in administrative litigation to conclude that the solution given by the Supreme Court to the conflict of regulations and the relationship between the applicable time limits is at least questionable.
Keywords: Superior Council of Magistracy, normative administrative act, administrative contentious, organic law, the principle of the hierarchy of legal norms, art. 2 para. (1) letter h) of Law no. 554/2004, the career of magistrates, promotion contest.
