Judicial annulment of the decision of exclusion from the party. Effects of the prefect’s order of legal termination of the mandate of the local counselor. Reinstatement of the previous situation

DREPT ADMINISTRATIV

Abstract

According to the theory of annulment of the administrative act, the validity of an act refers to grounds for annulment which are prior or concomitant to the issuance of the act. In the present case, as the first court ruled too, the prefect’s order challenged with an objection of unlawfulness was issued based on letter 162/16 November 2017, whereby Party A submitted to the prefect the request to confirm the legal cessation of claimant’s mandate of local counselor and declare the position vacant further to his exclusion from the Party and the report of the Service for the control of lawfulness of acts and administrative contracts. Whereas according to Art. 12 para. (3) of Law 393/2004, the prefect has the obligation to rule on notifying the political party for the mandate cessation and vacancy of the position as legal counselor excluded from the party, within 30 days from 
notification, the challenged order was issued in line with the legal provisions above. The fact that after the issuance of the challenged order, the decision of the Office of the County Organization of Party A was issued to exclude claimant from the party may not lead to the annulment of the prefect’s order for the simple reason that said act is not in a relation of subsequence with the party decision. Because the exclusion from the party does not automatically lead to the termination of the quality of local councilor, and this entity must also notify the prefect with the analysis of the fulfillment of the conditions provided by law for termination of quality and vacancy of local councilor, without expiring the term for contesting exclusion from the party