EXPLICAŢII PRIVIND ADMISIBILITATEA DECLINÃRII DE COMPETENŢÃ ÎNTRE UN ORGAN ADMINISTRATIV-JURISDICŢIONAL ŞI O INSTANŢÃ DE JUDECATÃ

Entities with administrative-jurisdictional activity, such as the National Council for Solving Complaints, have duties strictly delimited by the regulations establishing them and organizing their operation. According to the Law no. 554/ 2004 on administrative litigation, the special administrative jurisdiction represents the activity carried out by an administrative authority that has, according to the applicable special incorporating law, jurisdiction to solve a conflict regarding an administrative action, according to a procedure based upon the principles of adversary proceeding, ensuring the right of defense and the independence of the administrative-jurisdictional activity. In carrying out this complex activity, is sometimes possible that the notifications received by the jurisdictional authority exceed its scope of jurisdiction, a situation in which it has the obligation to establish whether there is a competent court of law or another competent entity with jurisdictional activity, to which it could forward the notification erroneously referred by the complainant. The fulfillment of this legal obligation supports and guarantees to the complainant effective access to the institution having jurisdiction to solve his/her claim, in agreement with the principles of any fair trial. Numerous times, after finding justified the exception of its lack of jurisdiction in trying certain cases, the Council ordered their declining towards the competent courts of law, subsequently referring such cases to the courts. Although most courts towards which the declining was ordered accepted the files received, according to the case law of certain Courts of Appeal, the legal institution of declining is not available to the administrative-jurisdictional entities, which should have dismissed the claims received, and not decline them. This study presents with criticism the latter solutions issued by the courts of law in the legal matter of declining, as well as the author’s arguments in supporting its resolution in agreement with the legal rules.