Summary: The Constitutional Court’s decision regarding building permits eliminates the exclusivity granted to the prefect in contesting building/demolition permits, and the optional suspension of those permits is reviewed in light of constitutional provisions.

On the date of 07.11.2024, Constitutional Court It has admitted the exception of unconstitutionality raised with regard to the provisions of Article 12(1) and (2) of Law no. 50/1991 on the authorization of the execution of construction works („Law no. 50/1991”).

The current form of Article 12, paragraph (1) of Law no. 50/1991, considered unconstitutional, only provides for the possibility for the prefect to challenge building/de-listing permits issued in violation of legal provisions:

„Building or demolition permits issued in violation of legal provisions may be annulled by the administrative litigation courts, in accordance with the law, as a result of the prefect initiating the action following the activity of the State Inspectorate for Construction – I.S.C.”.

At the same time, Article 12, paragraph (2) of Law no. 50/1991, which is otherwise considered unconstitutional, provides for the optional suspension of the administrative act challenged by the prefect:

„With the introduction of the action, the court may be asked to suspend the building permit or demolition authorization and to stop the execution of the works until the merits of the case are resolved.”.

Thus, the Constitutional Court considered that the provisions of Article 12, paragraph (1), of Law no. 50/1991 are unconstitutional, since they do not grant the right to persons harmed by an administrative act (building permit/dissolution) to appeal to the courts following the activity of control by the State Inspectorate for Construction – I.S.C., which violates the provisions of Article 52, paragraph (1), and Article 21, paragraph (1), of the Constitution.

The Constitutional Court also considered the provisions of Article 12, paragraph (2), of Law no. 50/1991 to be unconstitutional, as they violate the provisions of Article 123, paragraph (5), of the Constitution, which assigns a suspensive effect. de jure the administrative act attacked by the prefect.

Relevant aspects:

• The impact of the Constitutional Court decision:

The Constitutional Court’s decision regarding building permits highlights the need to amend the legislation to clarify and extend the legal protection framework. Prefects will thus no longer have the exclusivity to challenge building permits/demolitions deemed illegal following the activity of the State Inspectorate for Construction – I.S.C.

• Increasing access to justice:

Individuals harmed by an administrative act, such as building or demolition permits issued illegally, thus acquire a direct avenue to challenge these acts, strengthening the fundamental right of access to justice guaranteed by the Constitution.

• The need for legislative compliance:

Thus, the provisions of Article 12, paragraphs (1) and (2) of Law no. 50/1991, found to be unconstitutional, cease to have legal effect 45 days after the publication of the Constitutional Court’s decision, unless, within this period, the legislature does not reconcile the unconstitutional provisions with the provisions of the Constitution. During this period, the provisions found to be unconstitutional are suspended in law.

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