Nulitatea de formă a actelor administrative privind raportul de serviciu al funcționarilor publici în lumina prevederilor Codului administrativ
Formal invalidity of administrative acts relating to the employment relationship of civil servants in the light of the provisions of the Administrative Code

Summary/Abstract: The present study represents an analysis of the institution of formal nullity of administrative acts regarding the public servant’s duty relationship, respectively of the provisions of art. 535 of Emergency Government Ordinance (EGO) no. 57/2019 regarding the Administrative Code, by reference both to the special legislation in the matter of administrative litigation and the applicable general legislation, including a theoretical approach as well as a practical one. Repealing the provisions of Law no. 188/1999 regarding the public servant’s duty relationship, the Administrative Code establishes a series of procedural formalities common to several administrative acts regarding the public servant’s duty relationship, regulating the sanction and its mode of operation in the event of non-fulfillment of the formal requirements established by art. 528-533. Although the text of article 535 is concise and easy to read, it was found that in practice its interpretation is not uniform. Thus, despite the fact that the regulation expressly provides for the sanction of legal nullity in the event of non-compliance with certain legal provisions regarding the form of administrative acts regarding the public servant’s duty relationship, nullity to be found by the administrative litigation court, the study proposes to present an interpretation nuanced in the sense that the sanction of nullity: – cannot be ordered for the hypotheses regulated in art. 528 para. 3-8 because the non-communication of administrative acts is, in principle, sanctioned with unenforceability, not with nullity; – cannot be ordered for the omission of any ot the formalities mentioned in art. 529-533, but only for non-compliance with the legal norms that provide for essential provisions, being conditioned by damage that can only be removed by abolishing the act; – is not established, but ordered by the court. The study has theoretical and practical importance, from the perspective of the novelty of the legal issues in the analysis, proposing to determine a debate on some interesting topics, aiming to contribute to the outline of a unified interpretation of the legal provisions, aspect justified by the variety of solutions identified in the specific practice of the administrative litigation courts regarding the cases that have as their object the public servant’s duty relationship.

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