Chapter IV. Annulment and Termination of Legal Force of Individual Administrative Acts.
Section III. Procedure for Issuing Individual Administrative Acts.
Book II. Administrative Procedure.
Administrative Code of the Republic of Moldova
Excerpt:
Article 143. Withdrawal of an unlawful adverse individual administrative act
(1) An unlawful adverse individual administrative act may be withdrawn in whole or in part with effect for the future or the past even after it has become incontestable.
(2) The assessment of the legality or illegality of an individual administrative act shall be made depending on the situation at the time of its issuance, and in the case of a preliminary procedure – on the situation at the time of the adoption of the decision on the preliminary application.
(3) If, when issuing an individual administrative act granting social benefits, the legislation was not correctly applied or a state of affairs was assumed that proved to be incorrect and, as a result, appropriate social benefits were not provided, then the administrative act, even after it has become incontestable, shall be annulled in whole or in part with effect for the past or the future. This rule shall not apply if the administrative act is essentially based on erroneous or incomplete data, which the disadvantaged person has submitted intentionally or through gross negligence.
(4) If an individual administrative act is withdrawn in accordance with paragraph (3) with retroactive effect, social benefits shall be provided in accordance with the relevant legal provisions for a period of no more than 3 years until withdrawal. If withdrawal is made upon request, the calculation of the period for which social benefits will be granted retroactively shall be made from the moment of submission of the request.
(5) The provisions of paragraphs (1)–(4) of this Article shall not apply if the conditions set out in Article 147 paragraph (3) are met.
Article 144. Withdrawal of an unlawfully favourable individual administrative act
(1) An unlawfully favourable individual administrative act may be withdrawn in whole or in part with effect for the future or the past, even after it has become incontestable, only under the limitations set out in paragraphs (2)–(6).
(2) An unlawfully favourable individual administrative act granting a periodic or one-off cash benefit or a material benefit or constituting the condition for it may not be withdrawn if the beneficiary had confidence in the existence of the administrative act and, taking into account the public interest, the protection of the trust regarding the withdrawal is required. As a rule, the trust must be protected when the beneficiary has consumed the benefits made or has decided on a patrimonial disposition that he can no longer revoke or can only revoke with unacceptable disadvantages. The beneficiary may not invoke the trust if:
a) he obtained the administrative act by fraudulent misrepresentation, threat or corruption;
b) the administrative act is based on essentially erroneous or incomplete data that the beneficiary submitted intentionally or through gross negligence;
c) he knew at the time of communication of the administrative act about its illegality or was unaware of this fact through gross negligence.
(3) If the beneficiary cannot invoke the trust according to paragraph (2), the individual administrative act is withdrawn, as a rule, with retroactive effect.
(4) An illegal individual administrative act favorable to the periodic granting of material or financial benefits may be withdrawn according to paragraph (2) only for 3 years from its communication. This restriction does not apply if:
a) the beneficiary obtained the administrative act by fraudulent misrepresentation, threat or corruption;
b) the administrative act is based on essentially erroneous or incomplete data that the beneficiary intentionally submitted;
c) the beneficiary knew at the time of communication of the administrative act about its illegality;
d) the administrative act was issued with an admissible reservation of revocation.
If the individual administrative act is based on essentially erroneous or incomplete data that the beneficiary submitted due to gross negligence or if the beneficiary due to gross negligence did not know at the time of communication of the administrative act about its illegality, then a period of 10 years shall apply instead of the 3-year period provided for in this paragraph.
(5) If an unlawfully favourable individual administrative act is withdrawn that does not fall under paragraph (2) or (4), then, at the request of the person affected by the withdrawal, the public authority shall compensate the financial disadvantage that he will suffer for the trust in the existence of the administrative act, provided that, taking into account the public interest, the protection of the trust is required. The provisions of paragraph (2) concerning the impossibility of invoking the trust by the beneficiary shall apply accordingly. The financial disadvantage may not, however, be compensated for more than the amount of the interest that the affected person had in the existence of the administrative act. The application for compensation may only be submitted within one year. The time limit shall begin to run as soon as the competent public authority pursuant to Article 148 notifies the affected person in writing of the withdrawal.
(6) If the public authority learns of facts justifying the withdrawal of an unlawfully favourable individual administrative act, then the withdrawal is admissible only within one year from the moment when the competent public authority according to art. 148 learns of all the facts necessary for a decision on withdrawal. This provision does not apply if:
a) the beneficiary obtained the administrative act by fraudulent misrepresentation, threat or corruption;
b) the administrative act is based on essentially erroneous or incomplete data that the beneficiary intentionally submitted;
c) the beneficiary knew at the time of communication of the administrative act about its illegality.
Article 145. Revocation of an unfavourable individual administrative act
An unfavourable individual administrative act may be revoked in whole or in part with effect for the future even after it has become incontestable, except in the case when a new administrative act with the same content should be issued or when revocation is not allowed for other reasons.
Article 146. Revocation of a favourable individual administrative act
(1) A favourable individual administrative act may be revoked in whole or in part with effect for the future, even after it has become incontestable, only when:
a) revocation is permitted by legal provision or the administrative act contains a reservation of revocation;
b) the administrative act is related to an obligation and the beneficiary has not fulfilled it or has not fulfilled it within the established deadline;
c) based on subsequent events, the public authority would have the right not to issue the act and without its revocation the public interest would be endangered;
d) based on an amended legal provision the public authority would have the right not to issue the administrative act, the beneficiary has not yet made use of the respective advantage or has not yet received any benefit based on the administrative act and without its revocation the public interest would be endangered;
e) the revocation is necessary to prevent or eliminate serious disadvantages for the common well-being.
(2) A legally favourable individual administrative act granting a one-off or periodic monetary benefit or a material benefit for the fulfilment of a specific purpose or which constitutes the condition for it may be revoked in whole or in part with effect for the future or the past, even after it has become incontestable, and when the benefit is not used at all, is not used immediately after being granted or is not used for the purpose established in the administrative act.
(3) If the public authority learns of facts justifying the revocation of an administrative act in accordance with paragraph (1) or (2) of this Article, the revocation shall be admitted only within one year from the moment when the competent public authority in accordance with Article 148 learned of all the facts necessary for a decision on revocation. This provision shall not apply if the beneficiary obtained the administrative act by fraudulent misrepresentation, threat or corruption.
(4) If a legally favourable individual administrative act is revoked in accordance with paragraph (1) letter c), d) or e) of this article, then, upon request, the public authority shall compensate the affected person for the financial disadvantage caused as a result of the trust in the existence of the administrative act, provided that, taking into account the public interest, the protection of the trust is required. The beneficiary may not invoke the trust in the cases set out in art. 144 paragraph (2). The provisions of art. 144 paragraph (5) shall apply accordingly.
(5) The provisions of par. (1) letter c), d) and e) of this article shall not apply if the conditions of art. 147 are not met.
Article 147. Cancellation of individual administrative acts for the periodic granting of material or financial benefits in the event of a change in the situation
(1) If an essential change has occurred in the factual or legal situation that was the basis for the issuance of an individual administrative act for the periodic granting of material or financial benefits, then the administrative act shall be canceled or amended with effect for the future. The administrative act shall be canceled or amended from the moment of the change in the situation if:
a) the amendment has effect in favor of the recipient of the benefit;
b) the recipient of the benefit, intentionally or through gross negligence, failed to fulfill the obligation, established by legal provision, to communicate the essential change in the situation disadvantageous to him;
c) after the application was submitted or the administrative act was issued, income or other financial advantages were obtained that would have led to the complete or partial omission of the right to claim the benefit resulting from the administrative act; or
d) the recipient of the benefit knew or did not know through gross negligence that, by virtue of the law, the right to claim the benefit resulting from the administrative act is no longer paid or has lapsed in whole or in part.
(2) If income or other financial advantages are calculated based on a legal regulation for a period in the past, then the beginning of the calculation period is considered as the moment of change in the situation.
(3) An individual administrative act for the periodic granting of material or financial benefits shall also be annulled or amended with effect for the future when the Supreme Court of Justice changes the existing judicial practice and this is favorable to the entitled person.
(4) If an illegal favourable individual administrative act granting periodic material and financial benefits cannot be withdrawn in accordance with art. 144, and a change has occurred in favour of the recipient of the benefit in accordance with par. (1) or (3) of this article, then the recipient of the benefit shall not benefit from the change as long as the amount established by the illegal favourable administrative act or, as the case may be, the amount established by this administrative act exceeds the amount/amount provided for by law. This provision shall apply accordingly if the basis of an illegal individual administrative act granting periodic material or financial benefits is an illegal favourable individual administrative act which cannot be withdrawn in accordance with art. 144.
(5) The provisions of art. 143 par. (4) and of art. 144 par. (4) and (6) shall apply accordingly.
Article 148. Competence
(1) The withdrawal, revocation or annulment of an uncontestable individual administrative act shall be decided by the competent public authority in accordance with art. 53–59 or in accordance with other legal provisions.
(2) The competent public authority in accordance with par. (1) of this article shall also resolve requests for compensation for the financial disadvantage in accordance with art. 144 par. (5) and art. 146 par. (4).
Article 149. Withdrawal, modification and revocation within the framework of the procedure for exercising appeals
The provisions of art. 144, 146 and 147 do not apply if a favorable individual administrative act contested by a third party is annulled in the preliminary procedure or in the administrative litigation procedure, to the extent that this redresses the preliminary procedure or the administrative litigation action.
Article 150. Restitution of benefits granted on the basis of an individual administrative act
(1) Benefits already granted shall be restored if an individual administrative act has been rectified, withdrawn, revoked or annulled due to an obvious error or has become invalid under the conditions of art. 138 para. (4) letter b). Benefits granted in services and material ones shall be restored in money.
(2) With the exception of interest, the provisions of the Civil Code regarding the restoration of benefits in the case of unjust enrichment shall apply accordingly to the volume of the restoration. The beneficiary may not invoke the omission of enrichment if he knew or, as a result of gross negligence, did not know the circumstances that led to the rectification, withdrawal, revocation or annulment of the individual administrative act.
(3) The benefit to be restored shall be established by a written individual administrative act. The establishment is usually conditioned by the rectification, withdrawal, revocation or annulment of the individual administrative act.
(4) The decision to refund is issued by the public authority that decided on the rectification, withdrawal, revocation or annulment of the individual administrative act. If the individual administrative act has become invalid as a result of the occurrence of a dissolution condition, then the competence belongs to the public authority that issued the administrative act.
Article 151. Refund of benefits granted in the absence of an individual administrative act
(1) Benefits granted in the absence of an individual administrative act shall be refunded. This provision does not apply if more than one year has passed after the public authority that made the benefit learned about all the facts necessary for the refund decision.
(2) The provision of para. (1) regarding the non-restitution of the benefit shall not apply if:
a) the beneficiary obtained the benefit through fraudulent misrepresentation, threat or corruption;
b) the provision of the benefit is based on essentially erroneous or incomplete data that the beneficiary intentionally presented;
c) the beneficiary knew about the illegality of the provision of the benefit.
(3) The provisions of art. 150 para. (1) regarding the restitution of benefits in money, para. (2), para. (3) regarding the establishment of the benefit by written administrative act shall apply accordingly.
(4) The decision to restitution shall be issued by the public authority that provided the benefit.
Article 152. Interest
(1) An amount to be refunded shall bear annual interest equal to the base rate of the National Bank of Moldova for the reference period.
(2) The obligation to pay interest shall lapse if the amount to be refunded is paid within the period established by the public authority and at least one of the following conditions is met:
a) the beneficiary is not at fault for the circumstances that led to the withdrawal, revocation or annulment of the individual administrative act;
b) the beneficiary informs the public authority that issued the individual administrative act within 3 months of the existence of an obvious error;
c) the beneficiary shall inform the public authority that issued the individual administrative act within 3 months of the occurrence of a condition that cancels the benefit;
d) the recipient of a benefit that was provided in the absence of an individual administrative act shall inform the public authority that provided the benefit within 3 months of its receipt.
(3) The obligation to pay interest shall begin to run from the moment the beneficiary wrongfully received the benefit granted.
(4) If a benefit is not used immediately after its payment for the purpose established in the individual administrative act, the public authority that issued the administrative act may request for the period until the use for the purpose, an annual interest equal to the base rate of the National Bank of Moldova from the reference period, being possible a subsequent revocation of the individual administrative act according to art. 146 para. (1) letter a).
Article 153. Restitution of documents and goods
(1) If the revocation, withdrawal or annulment of an individual administrative act can no longer be contested or if it is invalid or no longer valid for another reason, then the public authority may request the return of documents issued on the basis of the administrative act or of goods intended to prove the rights arising from the administrative act or to exercise them. The holder, to the extent that he is not the possessor, as well as the possessor of these documents or goods are obliged to return them.
(2) The holder or possessor may request that the documents or goods be handed over to him again after they have been marked by the public authority as invalid. This provision does not apply to goods for which such marking is not possible or the marking cannot be made with a necessary public character or to last over time.
