02.04.2025

The civil servant and 'absolute immunity' - who pays for bureaucratic abuses?

Any person wishing to build a construction must go through the administrative procedure of authorization, which in principle includes the following steps: issuing the urban planning certificate, obtaining all the permits indicated in the certificate, issuing the building permit, acceptance of the completed works and issuing the certificate of attestation of the construction of the building. All these stages require the involvement of civil servants responsible for town planning or other related specialized fields (environment, water management, cultural heritage, etc.).

In recent years, in the main developed cities of the country, there has been a veritable crusade launched by the "apostles" of green spaces, of certain NGOs with a more or less "underground" activity, and of the almost limitless extension of protected/protected areas. Some dignitaries have decided to pursue an urban and spatial planning policy based on the activist principle of 'the end justifies the means', in flagrant violation of the right to private property guaranteed by any modern democratic state and with the de facto expropriation of private owners without any prior compensation.

In reality, expropriation procedures are never initiated, let alone finalized, and the owners are left with their properties and development projects blocked. This not only seriously damages the assets, rights and interests of private investors, but also has a significant impact on local budgets. The possibility of the development of real estate projects by private individuals or legal entities, in compliance with the property rights guaranteed by any modern, democratic state, substantially supports local budgets by paying the fees for building permits and authorizations, as well as local taxes which are much higher than those payable on undeveloped land.

In addition, the development of real estate projects would also benefit the labor market by paying salaries, social security contributions and other legal obligations.

Under the umbrella of perfectly legitimate general interests, such as environmental protection, the avoidance of urban agglomeration or the protection of the built heritage (admittedly, hundreds of meters away from the authorized building, but no one seems to look into such details), elected representatives, through their subordinate specialized apparatus, impose their "regulation" and authorization policy in various ways. Paradoxically, the negative consequences of this forcibly imposed 'collective good' are not only felt by private investors who want to build, but also by end users, who fall victim to an insufficient supply of real estate on the market, having to pay much higher, sometimes even ridiculously high, sums than would have been normal for the purchase of the real estate.

When permits become weapons against development

In order to have a compliant real estate investment, a serious and responsible developer, who wants to deliver the real estate on time to the end-customers, respecting all construction quality standards, allocates considerable amounts of money upfront by contracting extensive design services, construction materials (the price of which has increased considerably with the war in Ukraine), construction execution services or own labor and legal service costs. Private sources of finance for all of these can come from equity contributions, commercial loans or even stock market listings.

Blocking a real estate project involves extensive damages including: legal costs, incurred by the investor in order to annul in court the illegal administrative acts, as well as to justify to the final clients the delay in the delivery of the real estate (undesirable even by the developer, but unavoidable) within the deadline set in the signed pre-contract, unavailability of the sums paid in advance (which remain "up in the air", until the court rules), additional costs with the contractual partners (with whom the original commitments have to be extended), concessions from the bank/financiers when repaying loans, storage of purchased materials until the work is resumed, conservation and security of the buildings already completed, and so on. In addition to this, the mayor and his specialized staff spend public money, having to justify (more or less inspired and justified) the numerous acts and opinions, to formulate answers to preliminary complaints and to represent the interests of the municipality in court.

In addition to the time wasted by the representatives of the public institutions in drafting replies, traveling to the courts, actually appearing before the courts to defend their defenses, they are also liable to pay considerable sums to the owner of the property in damages and legal costs, which are obviously in addition to the sums not collected by the local budgets. The resulting total damage has a major impact on the national economy, being made up of the sums not received for the issuance of the requested documents, the sums not received in the form of taxes, contributions, interest and the sums allocated to justify refusals.

At a time of alleged economic hardship, local authorities prefer to waste money that should be directed to local budgets, instead of replacing this passivity and bad faith with compliance with their duties and the issuing of documents legally requested by taxpayers.

"Absolute immunity" of civil servants - a dangerous illusion

The above described landscape is a reality "thanks" to local elected representatives and their subordinate officials, who consider that their public office gives them absolute immunity from liability (civil, administrative or criminal) and either unjustifiably refuse to respond to requests or issue acts and opinions, or impose opinions without any legal basis (on the principle of "let's blow on the yogurt"), or block the issuance of the final act by refusing to carry out intermediate operations. There are many such situations that can be described, but we will limit ourselves to two illustrative cases.

Relevant cases: when the courts are called to censure abuses

The first case concerns a dispute in the Municipality of Bucharest in which, after the construction of the building and the signing of the completion report (even by the representatives of the Mayor's office!), which technically certifies the building's technical compliance with all the regulations in force, the client was faced with the unjustified refusal of the Mayor to issue the certificate of completion of the building, which would have allowed him to register the ownership of the building in the land register and, further, to proceed with the sale to the final clients. The reasons underlying the refusal and, subsequently, the separate appeal against the certificate of completion, considered perfectly legal only a few months ago by the same administration, are the most hilarious, the 'gross illegality' consisting in the fact that the authorized built area is 770 sq. m., but the actual built-up area is 767 sq.m. (i.e. 3 sq.m. less!), and that the authorized built-up area is 8,850 sq.m., while the actual built-up area is 8,856 sq.m. (i.e. only 6 sq.m. more!). To make the absurd picture complete, at the end of 2024, the legislator intervenes and encourages an obvious double standard, expressly providing that for transportation infrastructure projects of national interest and metro managed by the Bucharest Metro Transport Company "Metrorex" S.A., ownership of the buildings is entered in the land register on the basis of the building permit issued by the Ministry of Transport and Infrastructure, the acceptance report on completion of the works, the other relevant legal provisions and a cadastral document, without the obligation for the competent authority issuing the building permit to issue a building certificate

The second case concerns a favorable final decision regarding a property in the Municipality of Iasi, whereby the court ruled that the unfavorable opinion issued by the Iasi County Council is an administrative act that can be censured by the contentious court. Previously, the public administration had taken advantage of the fact that this opinion was a mere preliminary operation , different in nature from the final administrative act represented by the building permit, in order to evade the courts' review of this opinion, in a context in which it was obvious that the arguments of the Iasi County Council were not even close to the letter and spirit of the applicable regulations.

Administrative abuse costs, but who foots the bill?

All these seemingly legal legal subterfuges are in reality an abuse in the exercise of official duties, an abuse that the law penalizes, among other things, by making the person who contributed to the drafting, issuing, adoption or conclusion of the illegal act jointly and severally liable with the public authority, or who is guilty of refusing to resolve the claim relating to a subjective right or legitimate interest or failing to do so within the legal deadline.

Thus, insofar as it is established that the person is guilty of willful misconduct in the exercise of his/her duties and the action for damages is admissible, the damages exemplified above may be recovered first of all by the injured investor, and then by the convicted municipality, which may seek damages against the public official or official who has acted in bad faith.

Last but not least, we would like to point out that the awarding of damages does not exclude other types of liability which, according to the law, may fall on the signatories of the acts or persons in charge of the authorization process, which may be criminal, contraventional or disciplinary in nature, depending on the specific facts of the case.

Collaboration, not confrontation

In lieu of conclusions, we express the hope that local public administration can indeed be a loyal, good-faith partner of all taxpaying citizens (be they individuals or legal entities) and we note that the mirage of "green and quiet cities" cannot ignore the upward trend of economic development in the country's major cities, with all the urban agglomerations inherent to this growth. Strong economic centers mean an economically strong country, and the regional and global politico-economic climate calls for greater resilience of states. To this end, more effective collaboration is needed at local level between the administration and the governed.

An article signed by Alin-Gabriel Oprea, Senior Associate and Ștefan Călin, Associate - STOICA & ASOCIAȚII.