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

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

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, generically speaking, their activity in order to... (see full summary)

 
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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.

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