Misuse of powers and its relationship to the doctrine of proportionality under community law

Abstract

Pushing the frontiers in the field of Judicial control of Administrative Action is what this dissertation is all about. Control could be from the formal point of view. In this sense it is also known as jurisdictional. It is exercised when the administrative authorities exceed their competence or violate the law. But a deeper and more meaningful sort of control, is exercised when the Courts start to question the purpose and aim of administration action, even if this is exercised within the limits of the law. In judicial review for misuse of powers the Courts investigate whether, although powers are exercised according to the enabling instruments, the aims and purpose of the law have been observed. They have to interpret the spirit of the legal provision, and see, whether the particular administrative. action kept within it. Powers used for the wrong purpose are therefore also illegal. Analysing whether the administration has used its powers for the purposes of the relative legal provisions usually involves an excursion into the intentional part of the administrative measure, and the Courts are ill-prepared to do it. They do not want to substitute their own judgement or discretion for that of the administration. The principle of proportionality offers a different approach. Administrative measure have to be justified by the aims to be achieved. If the measures used are disproportionate to the amount of prejudice done then they are illegal. Judging whether an act is proportionate or not is an exercise in objectivity. But the judge has to evaluate whether in the circumstances the action was proportionate. In this way he is making a subjective evaluation, but not substituting his discretion to that of the administrator.