Competence determined strictly by the law and the discretionary power of public administration

• Author: Catalin-Silviu Sararu
• Pages: 247-251

Competence determined strictly by the law

and the discretionary power of public administration

1

Associate professor Ctlin-Silviu SRARU

2

Abstrac t

Compete nce rela ted to pu blic administrat ion o ccurs wh en, in t he presenc e of a

given situati on, the administrat ive auth ority enjoys no margi n of freedom, being forced to

act in a strictly det ermined by law. Sometimes th e law may allow pub lic auth orities a wid er

or narrowe r marg in of a ppreciati on on a concrete sit uation. The a rticle analyzes the

condi tions und er which govern ment can exercise d iscretionary p ower within the la w.

Keyword s: competenc e, discretiona ry power, public administrat ion, administrative

law.

JEL Cla ssification: K23

1. Introductory conside rations

Competence related to public administration occurs when, in the presence

of a given situation, the administrative authority enjoys no margin of freedom,

being forced to act in a strictly determined by law

3

.

Sometimes the law may allow public authorities a wider or narrower

margin of appreciation on a concrete situation. The law may allow public

authorities to have the opportunity to choose the decision they will take (eg. after

examining the ability to drive a motor vehicle on public roads, the police has the

opportunity to assess whether to grant or deny license driving), to choose the

means that will be used to achieve the result prescribed by law (for example in

taking measures police when demonstrations which disturb public peace) or choose

when to be issued an administrative act. We are in this case in the presence of a

discretion or exercised discretion to the extent permitted by law by public

authorities. Therefore, discretion is nothing else than the margin of freedom of the

1

This article was submitted to 6th International Conference “Perspectives of Business Law in the

Third M illennium”, 25 -26 November 2016, t he Bucharest U niversity of Economic Studies,

Bucharest, Romania.

2

Cătălin-Silviu Săraru – Department of Law, Bucharest University of Economic Studies,

catalinsararu@yahoo.com

3

See Dana Apostol Tofan, Puterea discreţionară şi excesul de putere al autorităţilor publice, All

Beck, 1999, Bucharest, p. 65.