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

Author:Catalin Silviu Sararu
Position:Department of Law, Bucharest University of Economic Studies
Pages:247-251
SUMMARY

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. Sometimes the law may allow public authorities a wider or narrower margin of appreciation on a concrete situation. The article analyzes the conditions under which government can exercise... (see full summary)

 
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Competence determined strictly by the law
and the discretionary power of public administration
1
Associate professor Cătălin-Silviu SĂRARU
2
Abstrac t
Compete nce rela ted to pu blic administrati on 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 wide r
or narrowe r marg in of a ppreciatio n on a concrete situ ation. The a rticle analyzes the
condi tions und er which govern ment can exercise d iscretionary p ower within t he law.
Keywords: 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.

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