Limits Of The Discretionary Power Established Through Enforcing The European Principle Of Proportionality

• Author: Oana Saramet, Georgeta-Bianca Spîrchez
• Pages: 260-269

LIMITS OF THE DISCRETIONARY POWER ESTABLISHED THROUGH

ENFORCING THE EUROPEAN PRINCIPLE OF PROPORTIONALITY1

Lecturer Oana ȘARAMET2

Assistant professor Georgeta-Bianca SPÎRCHEZ3

Abstract

In the contemporary society, the constitutional and/or legal enshrinement of the discretionary power of the public

authorities, including those from the public administration , is understandable, it is a true "given" that must have a legal

recognition for them. This margin of appreciation, which gives these authorities the possibility to carry out, gen erically

speaking, their activity in order to satisfy the public interest, must have some barriers imposed to limit their action solely

to the boundaries imposed by the legislator. Always, as a true axiom, governors holding power will, at least, want to keep

it within the limits held, if not even beyond the required legal "boundaries" imposed, in order to assign more prerogatives

for themselves. However, in order to overcome this trend, it is also necessary to build a legal system of control, including

judiciary, following which the actions of the authorities mentioned should be reframed into the legality matrix imposed

by the legislator. The modalities, levers, limits set by the legislator in this respect consider various aspects, including

principles, such as the principle of proportionality. This paper aims, by using the specific methods such as the

comparative, grammatical, logical, systemic and teleological one, to capture not only the theoretical aspects regarding

the discretionary power, the principle of proportionality, respectively the interconnections between them, but also the

jurisprudential aspects regarding the limits set to the discretionary power by means of this principle, limits deriving from

the judgments of the Court of Justice of the European Union.

Keywords: the principle of proportionality, discretionary power, limits, ca se-law, the Co urt of Justice of the

European Union.

JEL Clasiffication: K10, K23

1. Introduction

How much power would any public authority need, thus including one of the public

administrations, in order to exercise its attributions? A question that might seem rhetorical no matter

from whose perspective we look, because either it is about authority, or about the legislator who

regulates its organization, functioning and, especially, competence, or about the citizen against it will

exercise its attributions, the desired answer would be only one – as much as possible. But, in any

democratic society based on the existence and the functioning of the rule of law, upon the applicability

of the separation principle and the equilibrium of the powers within the state, the power recognized

by the constitutional and legal regulation, or only the legal ones, as the case might be, is not and

cannot be unlimited, cannot be total nor absolute at the discretion of any authority, including within

the public administration. This power should be enough, but without being too much4.

However, we could not recognize a discretionary power, an appreciation right which might

allow these authorities to exercise, within the limits established by the legal regulations, their own

competence. Or, because, as it was stated above, the tendency of any authority is to extend to the

maximum the limits of this margin of appreciation, and even, why not, to infringe them, an attentive

legislator to this kind of attempts will try to set limits, including by dedicated or referring to law

principles. Or, “the discretion” of a public authority, especially of one within the public administration

field, in exercising this appreciation margin must be translated by observing the proportionality

1 This study is the result of research funded under the project entitled "Legality - Opportunity, the relationship between them in the

administrative act and the identification of risk factors to ensure good administration" (UniTBv - Grants for interdisciplinary teams,

Competition 2018).

2 Oana Șaramet - Faculty of Law, Transilvania University of Brașov, Romania, oana.saramet@unitbv.ro.

3 Georgeta-Bianca Spîrchez - Faculty of Law, Transilvania University of Brașov, Romania, georgeta-bianca.spirchez@unitbv.ro.

4 To see on this purpose Christopher Collier, James Lincoln Collier, Decision in Philadelphia. The Constitutional Convention of 1787,

Random House, Reader's Digest Press, New York, 1986, p. 49, quoted in Dana Apostol Tofan, Puterea discreționară și excesul de

putere al autorităților publice, All Beck Publishing House, Bucharest, 1999, p. 7.