The prefect's objective legal action against acts concerning civil servants and contractual staff. Problems arising in judicial practice

DEZBATERI

Abstract

In judicial practice, the prefect's ability to exercise administrative guardianship over the acts of local public administration authorities concerning civil servants is analysed in relation to two benchmarks: the nature of the contested act as an administrative act and, respectively, the capacity of such an act to create, modify or terminate an employment relationship. Thus, some practice solutions have given precedence to the first of the two criteria mentioned, considering it decisive that the act issued/adopted by a local public administration authority is an administrative act, in order to place it under the prefect's administrative supervision. According to another jurisprudential orientation, the acts in question, concerning the civil servant's employment relationship, give rise to or, as the case may be, modify or terminate an employment relationship and for this reason are not subject to administrative guardianship. This split is reflected in the divergent opinions expressed in the doctrine on the legal nature of the civil servant's employment relationship and the correlation between this concept, which belongs to administrative law, and the employment relationship, which is the subject of labour law.

Also at the intersection of the two branches of law are some acts concerning staff employed on employment contracts in public authorities and institutions and to which the Administrative Code expressly refers as administrative acts, so that also in the case of this type of acts the question arises of the possibility of the prefect bringing an objective administrative action, of course if the other conditions characterising administrative guardianship are met.

Apart from the issue of the prefect's active legal standing to challenge in administrative proceedings acts concerning civil servants and contract staff, an analysis of judicial practice reveals certain procedural particularities involved in the exercise and conduct of this type of action, in particular with regard to the suspensive effect of execution, the interest, the procedural framework and the time limit for bringing the action.

Keywords: administrative guardianship, civil servant