The application of the principle of proportionality wihtin the national administrative law

• Author: Gina Livioara Goga - Vasilica Negrut - Gabriel Gurita
• Position: Lecturer Ph.D. at 'Danubius' University of Galati, Romania, Faculty of Law - Professor Ph.D. at 'Danubius' University of Galati, Romania, Faculty of Law - Lawyer - Galati Bar, Romania
• Pages: 6-8

THE APPLICATION OF THE PRINCIPLE OF PROPORTIONALITY WIHTIN THE NATIONA L

ADMINISTRATIVE LAW

Goga Gina Livioara

Vasilica Negrut

Gabriel Gurita

Abstract

At national level, ther e is no o bligation for the administrative a uthorities to motivate all the decisions

from the per spective of the a pplication of the pr inciple of proportiona lity. In the context of the r egulations

comprised in a rt. 53 of the Romanian C onstitution and ana lyzing the rigor s of the German law in the matter of

the principle of propor tionality, we assert tha t these exigencies should be also a ssumed at nationa l level.

Key words: administra tive authority, propor tionality, administrative law, nationa l law.

Introduction

These exigencies are the criteria of taking the most a dequate measures in or der to atta in the objectives,

the necessity of taking the measur es to obtain the results desired and the claim o f proportionality in strict

meaning, thr ough which we ca n assert if the measure ta ken is not excessive in or der to obtain the results. We

consider a s being necessary to restate the consider ations based on which the instances of administra tive

contentious perform the control on the procedure of declaring public unity, based on Law no.33/1994 on

expropria tion on the grounds of public utility. The appealed administrative act ha s to be evaluated based on

criteria a s the involvement of a public interest, necessity in a democra tic society, non prejudicial and non

discriminatory.

The adjustment of the triple proportionality criteria to the European exigencies

At the level of the national legislation, the principle of proportionality is not regulated expressly a s a

principle applicable to the relations of administrative law.

We have to mention that currently, the principle of p roportionality cannot find itself a complete approach

at national level, resembling to the one within the European Union of the German law. Thus, at the level of the

Union, the principle of proportionality is applied regarding the measures adopted for the fulfillment of the

community obligations or in case of the derogation of these obligations, according to the Union’s law. In case

our country has to appl y a regulation of the Union, transposed in internal frame, this regulation has to comply

with the conditions regarding the proportionality, respectively to be adequate to reaching the objective followed

and not sur pass what in necessary in order to reach the objective.

Within the member states, the pr inciple of proportiona lity is found in few states mentioned under this form

(Germany), usually being ana log to the principle of reasona bility, respectively a reasona ble relation between the

purpose and the means (Gr eat Brita in), a balance between the costs a nd a dvantages or between the political

interest a nd the private one (France). Ger many seems to present the best example of applying the tr iple criteria

of propor tionality borr owed subsequently by the law of the European Union and poured then within the other

member states. (Grea t Britain, Ita ly).

At constitutional level, we find such regulations regarding the proportionality of the measures in the

content of art. 53 r egarding the a bridgement of certain rights or liberties for certain considerations related to the

protection of public interests, but in the conditions in which the measure is necessary in a democratic society, if

it is proportional with the situation that determined it, is applied in non discriminatory manner and without

bringing prejudice to the existence of the right or the liberty. Also art. 44 regarding the r ight to private pr operty,

mentions that “no person can be expropriated but for a cause of public utility, established accor ding to the law,

with righteous and prior reparation”.

Law no. 33/1994 on expropria tion for a cause of public utility establishes the procedure of expropriation,

delimited in first instance administrative, pre contentious, respectively in the judicial stage. Both stages are

preceded by the declaration, by law, of the character of public utility by the Government, for the works of

national interest, respectively by the County Councils and Local Council o f Bucharest for the works of local

interest. In what concerns the control of the acts of authority the public utility was declared with, they cannot be

analyzed b y t he insta nces of administrative contentious except for reasons of legality and not oppor tunity the

latter being asserted by the administrative authorities

 Lecturer Ph.D. at “Danubius” University of Galati, Romania, Faculty of Law, e-mail: livia_goga@yahoo.com

 Professor Ph.D. at “Danubius” University of Galati, Romania, Faculty of Law, e-mail: vasilicanegrut@univ-danubius.ro

 Lawyer – Galati Bar, Romania, e-mail: gabigurita@yahoo.com