On the importance of using the proportionality principle in the analysis of the limits' exceedance of the administration’s discretionary power

Abstract

The principle of proportionality, created and developed primarily through the German case-law, doctrine and legislation, is a fundamental principle of law. This principle was further undertaken by other systems of law, not only from Europe, or at a national level, but also on the level of the international and regional organisations. Within this context, the hereby study implies an advocacy for this principle's usability importance within the area of the administrative decisions, and also for the significant part that it should have within the judicial control of these decisions, being a genuine censorship manner of the discretionary power and, therefore, an assurance of the rule of law. Our research endeavour is grounded at the national level by the fact that our specialised literature isn’t as ample as the one developed in other European states. Also, we acknowledge the need to model a unitary practice of our courts, under the influence exercised by the case-law of the European Court of Human Rights, respectively of the European Union Court of Justice. For this, the methodology of judicial research assumes the reference to issues of comparative law connected within the matter studied by us but, primarily, by providing examples from the practice of the two European jurisdictions, that should be brought together as references of good practices regarding the analysis elements which fall into the proportionality standard.