Clearly illegal regulatory administrative act. Consequences
DREPT ADMINISTRATIV ȘI FISCAL
Abstract
Regarding the circumstance that the court of first instance would not have considered the provisions of the Order no. 261/2016, which excluded from any communication the information requested by the defendant, the court notes that, indeed, according to the provisions of paragraph H of Appendix no. 3 to this order, the technical approvals issued by I.S.C. are exempted from communication, except for their holders, as well as the documents supporting the issuance of such approvals. Without denying the nature of mandatory administrative act of the Order of the General Inspector of the State Inspectorate for Construction no. 261/2016, the Court notes that this is, however, an infra-legislative act, the provisions of which must comply with the legal provisions. Although, generally, the provisions of an administrative act of regulatory nature cannot be verified incidentally, but exclusively in a dispute concerning the annulment of such an act, this principle has an exception in the case of acts affected by legality defects so serious that one cannot speak of their nullity, but even of the more drastic sanction of non-existence.
In this case, the Court notes that the manager himself of the concerned authority - THE STATE INSPECTORATE FOR CONSTRUCTION – issued an order of a regulatory nature by which it established which kind of information should not be communicated by this institution. If, in principle, such a manner of action could be accepted in the case in which the order would be limited to the enforcement of the provisions of Law no. 544/2001, this is not the situation in the present case.
Thus, based on the analysis of this order, it results that the technical approvals issued by I.S.C. were exempted from communication, for the observance of the confidentiality principle, except for their holders, as well as the documents supporting the issuance of such approvals, these being the provisions which the appellants claimants in this case rely on.
The Court considers that such a general exemption of all approvals and documents supporting the issuance of such approvals, is in flagrant contradiction with the provisions of Art. 12 para. (1) of the Law no. 544/2001, which establish the information exempted from communication, as long as the analysis of that text of law does not indicate that the approvals and documents in question would fall de plano within the scope of any of the categories of information that the public authorities should not communicate. In fact, the “confidentiality principle” invoked by the issuer of the order into question to exempt this information from communication, is not even contained in Art. 12 para. (1) of Law no. 544/2001.
Moreover, the court notes that, according to Art. 7 para. (21) of Law no. 50/1991, the building permit and its appendices are of public nature. However, the approvals and documents requested by the plaintiff in this case are those supporting the issuance of the building permit for the investment ”Centralized sewage system of domestic wastewater and treatment plant in C. Village, C. Commune, C County” and, therefore, they has the capacity as information of public interest and, in virtue of this special law, their exemption from communication by the Order no. 261/2016 is even more absurd.
Concluding, the court notes that the provisions of letter H of the Appendix no. 3 to the Order no. 261/2016, by which the manager himself of the STATE INSPECTORATE FOR CONSTRUCTION decided that the institution under his authority should not communicate certain information, even if it is manifestly of public interest and is in no case exempted from communication according to law, it is manifestly illegal, and for this reason it is required to be removed from application in this case.
Consequently, legitimately, the court of first instance did not take into account these provisions, and for this reason, the criticism lodged by the appellants claimants in this respect could not be accepted.
