The Illegality of Transferring the Right of Administration Through an Act Titled “Protocol” Concluded between the Ministry of National Defense and a Territorial Administrative Unit

Abstract

The right of ownership, along with all its derivative rights, has been and continues to be a constant concern of international, European, and national legislation, being also guaranteed by the Romanian Constitution. The right of administration over state property is a real right and entails the exercise of all prerogatives characteristic of the right of ownership, including legal remedies, such as filing a revendication action under common law. Law No. 213/1998 on public property and its legal regime governs the establishment and transfer of the right of administration, either through a Government Decision for assets forming part of the Romanian State’s public property, or through a Local or County Council Decision, as applicable, for assets belonging to the public property of a territorial administrative unit. This study, based on a real-life case encountered in judicial practice, investigates the status of the holder of the right of administration over a public property asset allegedly acquired by a territorial administrative authority through an act titled “protocol” signed with the Ministry of National Defense. The subject of this study also concerns the legality of the establishment and transfer of the right of administration to the patrimony of the territorial administrative unit, the legal nature of the act titled “protocol,” and the possibility of invoking the nullity of this act through the exception of illegality of an individual administrative act.