Contestation of administrative acts

Contestation of administrative acts
Jul 25, 2022
In the legal literature the administrative contestation of individual and general administrative acts is perceived as a set of coherently developing legal actions, regulated by the law and aimed at ensuring legally conformingly and properly operating administration within the governance of the country. It represents part of the process’ control phase which is not classified as mandatory as a general rule.
The objective of this control phase is to carry out an administrative verification of both the legal conformity and the expediency of the administrative act in case the act is issued in exercise of discretion and verification of its legal conformity on condition that the act is issued within the ambit of circumscribed powers.

The proceeding of the administrative contestation comprises of one instance and it is pursued before the immediately superior administrative authority which decision can be subject of a judicial appeal.
Art. 146 of the Code of Administrative Procedure outlines the grounds for contestation of the administrative acts, in particular:
1. lack of competence;
2. non-compliance with the established form;
3. material breach of administrative procedure rules;
4. conflict with provisions of substantive law;
5. non-conformity with the purpose of the law.

In case that an issued act does not conform to the abovementioned requirements, from a legal point of view the act shall be considered as legally non-conforming.

The parties subject to the administrative process which have standing to lodge an appeal or a protest against the administrative act are the persons concerned and the prosecutor. Regarding the granted opportunity of lodging an appeal or a protest it is therefore concluded that there is established principle that the parties delimit the subject-matter of the institution of the administrative proceedings.

In order to be effective as procedural remedies for contestation of administrative act, an appeal or a protest shall be lodged in writing through the agency of the administrative authority whereof the act is contested, within fourteen days after communication of the said act to the persons and organizations concerned and shall state the provided in the Code of Administrative Procedure mandatory information. 

The authority competent to consider the appeal or protest, having familiarised itself with the collected evidence, shall render a reasoned decision, whereby the said authority shall pronounce the contested act void, shall revoke the said act in whole or in part as legally non-conforming or inexpedient or shall reject the appeal or protest.
There is also a possibility granted by the Code of Administrative Procedure for judicial contestation of the administrative acts. The proceedings of judicial review, in essence, represent the second part of the process control phase. Specificity in this case is that subject to contestation shall be solely the legal conformity of the act.

The contestation of administrative acts is conducted before the competent administrative courts, which according to Art. 89 of Judiciary System Act shall have jurisdiction at first instance in all administrative cases except those in which the Supreme Administrative Court shall have jurisdiction by law.

The appeal or protest shall be lodged in writing through the agency of the authority which issued the contested act. The right to contest an administrative act shall vest in the individuals and organizations whereof the rights, freedoms or legitimate interests are violated or jeopardized by the said act or in respect of whom the said act gives rise to obligations.

The prosecutor, for its part, has also the option to lodge a protest against the act.

The Code of Administrative Procedure sets out a time limit of fourteen days for contestation. For tacit refusal or a tacit consent the time limit for contestation is within one month after the expiry of the time limit where within the administrative authority was obligated to pronounce. Where the act, the tacit refusal or the tacit consent have been contested according to an administrative procedure, the time limit shall begin to run as from the communication that the superior administrative authority has rendered a decision and, if the said authority has not pronounced, as from the latest date on which the said authority should have pronounced.

The judgment on the case shall be rendered within one month after the hearing whereat the examination of the case was completed. The powers of the court are exhaustively listed in the law - the court may declare the nullity of the contested administrative act, may revoke the said act in whole or in part, may modify the said act, or may reject the contestation.

One of the latest judgments of the Constitutional Court which has declared the unconstitutionality of the decision from 09.02.2022 passed by the National Assembly for the election of the Energy and water regulatory commission Chairperson opened up the possibility for contestation of the EWRC decisions issued since the excluded Chairperson has entered the service.

The issued authorisations and licences by the (Energy and water regulatory commission) EWRC can also be a subject of contestation, which in their essence are equal to the administrative acts and insofar special law does not lay down any different rules, the common provisions of the Code of Administrative Procedure shall apply to their contestation.