The Bucharest Court of Appeals definitively confirms the unlawful nature of the revocation of the former ARACIP President, Şerban Iosifescu, represented by NICULESA LAW FIRM

Șerban Iosifescu, represented by NICULEASA LAW FIRM, through lawyer Mădălin-Irinel Niculeasa and lawyer Simona Brăileanu, obtained the Bucharest Court of Appeals’ definitively confirmation in respect with the unlawful character of his revocation from the position of President of the Romanian Agency for Quality Assurance in Pre-University Education (ARACIP).

Beyond the procedural aspects, the solution obtained by the NICULEASA LAW FIRM team is remarkable in relation to the substantial issues analysed and clarified by the administrative litigation court, in a case that raised complex legal issues on the border between administrative law and the labour law.

The Bucharest Court of Appeal analyses with priority the validity of the consent expressed by the minister of education in office at the time of the request for Mr. Iosifescu to remain in the position of President of ARACIP for a period of 3 years beyond the standard retirement age. The Court establishes that the written consent of the minister is validly expressed and that it produces legal effects without the need to issue a ministerial order in this regard. Moreover, the lack of such a ministerial order is the consequence of the Ministry of Education’s misconduct for not having followed the appropriate administrative procedure in order to issue it and also the consequence of the Minister of Education’s misconduct for not actually issuing such an order approving the extension of the service relationships.

Equally relevant in the case is the interpretation of the provisions regarding the duration for which the extension of service relationships can be approved. And in this regard, the Court confirms the arguments of the NICULEASA LAW FIRM team, which showed that the annual extension of the service relationships is a possibility made available to the public official who obtained the approval for the extension of the service relationships for a period of less than 3 years (for reasons of opportunity appreciated by the head of the public institution/authority or because the public official’s request was formulated in such a way), and not an obligation of the latter.

Therefore, entrusted with resolving a legal issue that has generated non-unitary judicial practice over time, the Court establishes that the approval of the extension of the service relationships produces effects for the entire period included in the approval, without the need for annual reconfirmation.

No less impressive is the solution from the perspective of the effects it produces. Thereby, cancelling the Minister’s Order and denying the revocation, the Court comes to restore the proper balance, including in material terms, by obliging the Ministry of Education to pay compensation consisting of the difference between the amounts that the former President of ARACIP would have received with the title of salary rights and the amounts actually collected with the title of pension from the date of communication of the Revocation Order and until the date on the completion of the 3 years in respect of which the approval to extend the service relationships was effective.