According to the provision of Art. 132, para. 1 of the Spatial Planning Act (SPA):
„The resolutions, decisions and orders approving spatial-development plans under this Act shall enter into effect:
- as from the date of approval, where unappealable;
- after expiry of the time limit for appeal, unless appealed;
- as from the date of affirmation by the Court“
Therefore, if the order approving the DSP has entered into effect, this individual administrative act stabilizes and cannot be subject of complaint submitted by interested parties as per Art. 215 of the SPA.
Nevertheless, this administrative act can be attacked as void indefinitely in time. The most general grounds for invalidity of the act could be lack of competence, including in cases of delegated competence; non-compliance with the established form; violation of procedure rules where the non-compliance leads to a lack of valid statement of intent; non-compliance with substantive provisions and inconsistency with the purpose of the law.
The administrative act which has entered into force may be subject to control, with certain exceptions, in the procedure for incidental judicial control as per Art. 17 of the Code of Civil Procedure (‘CCP’).
This type of control does not represent genuine revision of the administrative act, insofar as the civil court pronounces on this issue incidentally, i.e. only within the obiter dictum of the decision aiming to resolve the main dispute in the case.
The particularity of this control is the following:
- Generally, the civil court can only incidentally review whether the administrative act is valid, i.e. whether it is not available to any of the grounds for its nullity. In terms of legality, the civil court has jurisdiction only if the act is opposed to a party who was not a participant in the administrative proceedings for its issuance and appeal.
- Such incidental control is possible only when the act was not subject to direct review by an administrative court, in which case the decision of the administrative court has force of res judicata and the civil court is bound by it.
- The decision of the administrative court, rendered in proceedings under direct judicial control, is binding on the state and its bodies managing the forests and lands from the
State Forest Fund (‘SFF’), as well as agricultural lands included in State Land Fund (‘SLF’).
- In case the administrative act has entered into force due to the fact that it has not been appealed and in respect of which no direct control was exercised, then the civil court may establish whether the administrative act is null and void or not. If the court considers that the act is void, it will resolve the main dispute, subject of the case, ignoring the void administrative act, which has no legal consequences.
- The opportunity for incidental control regarding the legality of the administrative act, is an exception of the general rule according to which the civil court cannot be accidental rule on the legality of the act. This is permissible only when the act is opposed to a party that was not a participant in the administrative proceedings for the issuance and appeal of the act. Incidental control for legality of the act cannot be executed when the administrative court has performed direct control over the act and by a decision has revoked or amended the act. This is due to that fact that according to Art. 177, para. 1, second sentence of the Administrative Procedure Code (‘APC’), such a decision takes effect in respect of everyone. In case the administrative court confirms the act by its decision, then the latter has the force of res judicate only between the parties involved in the administrative proceedings, therefore the civil court may exercise indirect judicial control over the act in respect of his legality if this act is opposed to a party that has not participated in the administrative proceedings.
- The order for approval of the DSP, as an individual administrative act, can be appealed, indefinitely, as void before the administrative court, even if it has entered into force;
- The civil court may exercise indirect judicial review in respect of the validity of the administrative act, when this issue is relevant for resolving the main dispute in the civil case;
- Indirect judicial control regarding the validity of the administrative act is inadmissible where the act has been subjected to direct review by an administrative court.
- When there is a pending case with a subject of direct control over the administrative act before the administrative court, the civil court should cease the case before it and wait for the outcome of the administrative case;
- The civil court may incidentally review the legality of the administrative act only when the act is opposed to a party to the civil case, which has not participated in the issuance proceedings and appeal of the act;
- Where the administrative act has been subject to direct control and the administrative court has issued a decision revoking or amending the act, this decision has effect on all, which is why the civil court cannot carry out indirect judicial review of the legality and validity of the act, even if a party to the case is a person who did not participate in the proceedings under issuance and appeal of the act.