Competence determined strictly by the law and the discretionary power of public administration 1

Abstract

Competence related to public administration occurs when, in the presence of a given situation, the administrative authority enjoys no margin of freedom, being forced to act in a strictly determined by law. Sometimes the law may allow public authorities a wider or narrower margin of appreciation on a concrete situation. The article analyzes the conditions under which government can exercise discretionary power within the law.

Headnote

Abstract

Competence related to public administration occurs when, in the presence of a given situation, the administrative authority enjoys no margin of freedom, being forced to act in a strictly determined by law. Sometimes the law may allow public authorities a wider or narrower margin of appreciation on a concrete situation. The article analyzes the conditions under which government can exercise discretionary power within the law.

Keywords: competence, discretionary power, public administration, administrative law.

JEL Classification: K23

1.Introductory considerations

Competence related to public administration occurs when, in the presence of a given situation, the administrative authority enjoys no margin of freedom, being forced to act in a strictly determined by law3.

Sometimes the law may allow public authorities a wider or narrower margin of appreciation on a concrete situation. The law may allow public authorities to have the opportunity to choose the decision they will take (eg. after examining the ability to drive a motor vehicle on public roads, the police has the opportunity to assess whether to grant or deny license driving), to choose the means that will be used to achieve the result prescribed by law (for example in taking measures police when demonstrations which disturb public peace) or choose when to be issued an administrative act. We are in this case in the presence of a discretion or exercised discretion to the extent permitted by law by public authorities. Therefore, discretion is nothing else than the margin of freedom of the public authority, within the law4, which allows him to appreciate the way in which will serve the general interests of society.

For example, for issuing a permit for movement law stipulates a number of conditions. Based on the laws, some of these conditions such as age limit, the fee will be found directly by the competent public administration to issue the act, in this case it is about exercising linked. Other conditions, such as the ability to drive a motor vehicle on public roads will be at the discretion of the police authority, in this case it is about the exercise of discretion.

Also for the entrance examination enrollment in an institution of higher education law strictly it provides that documents must be included in the registration file of the candidate. University will exercise therefore on the registration of candidates at the entrance examination, competence related to accepting or rejecting registration files depending on whether or not they include all documents required by law. But in terms of assessing the candidate's knowledge, it is left to the discretion of law examiners, involving the exercise of discretion in determining topics and scales corrections.

2.Limits the discretion of the public administration

The doctrine, along with the notion of discretion, and the notion of opportunity is used to denote no discretion to public authorities within the legal limits5. When government has a discretion (opportunity) allowed by the letter of the law it will be performed in compliance with the cumulative number of conditions:

* Compliance with government action spirit of the law6, ie the legislator will as evidenced by the systematic interpretation of enactment

* General principles of functioning of public administration7 (good administration, the principle of legitimate expectations in government action, the foreseeability action administration, the principle of proportionality, the principle of impartiality and professional independence of civil servants, the principle of openness and transparency of public administration, the principle motivation of administrative decisions the principle of government accountability for its actions etc.)

* Using the most modern public management techniques to achieve in terms of efficiency and effectiveness of social requirements which correspond to the public interest. The effectiveness of the relationship between the result and the objective to be achieved. The efficacy requires, on the one hand, the definition of a lens in advance and, on the other hand, the measurement result obtained8. Effectiveness of safety lies in the fact that government is moving towards performance goals, solving public problems legally. It is necessary to carry out an analysis and evaluation of public policies permanent, to ensure that they are properly implemented by public administration and civil servants. Efficiency is the ratio of the result and the means employed (the ratio between output and input). Innovation management as a way to increase efficiency seems to be often restricted by legal limits of government action. In reality it is achieved reform and development company, is in fact the engine management remodeling right administration9. Always regulatory and administrative acts will integrate existing values in society after their adoption, being a phenomenon conservation realities and traditions. Managerial innovations which discovers new techniques for achieving efficiency and effectiveness in terms of increased needs of society can determine proposals to amend public policies and strategies that resulted in legislative changes. From the perspective of efficiency and effectiveness of administrative action opportunity can be defined as the realization by government tasks and legal duties, the preferred term with the minimum expenditure of labor resources, material and spiritual, and choosing the most appropriate means to achieve purpose of the law10.

The doctrine were deducted several criteria for assessing the appropriateness of administrative acts11:

a) criteria adopted timing of an administrative act. Where the law leaves it to the public authority choosing when to adopt an administrative act, it must choose the right time, avoiding the act to be adopted early or late. Choosing the timing for adoption of administrative act will take into account the conditions for the exercise of discretion (opportunity) mentioned above. Such a decision is premature suspension of a university course after detecting a sure case of contagious disease. It's late decision to introduce electricity in a mountain village after it was completely depopulated inhabitants voluntarily due to lack this essential element of civilization.

b) the criterion and conditions that will apply concrete administrative act. Construction of a football pitch with 10,000 seats in a town with 5,000 inhabitants which has no football team performance can be inappropriate. Also building a tourist information center in a village before taking measures to enhance the sightseeing in the area is inappropriate. Regarding the specific conditions under which it will apply an administrative act, certainly implement a decision to asphalt a road while the road is covered with snow that is inappropriate; it is also inappropriate conduct repairs of the highway linking Bucharest to the Black Sea resorts in the middle of summer when they meet the highest traffic values.

c) criterion resources (goods, people, resources, time, etc.) involved in the adoption and application of the administrative act. Decision to involve significant financial resources and staff to create an accounting software where there are similar software on the market and can be purchased at a moderate price is inappropriate.

d) usefulness criterion, compliance with social requirements specific administrative act in the place where it will be applied. A city hall decision to build housing for young people may be undesirable given that most young people in their residence locality in search of jobs.

The doctrine was raised whether the opportunity to be seen as a distinct condition for the validity or appropriateness of the administrative act is an element of the condition of legality. This issue has been addressed differently in administrative law in two schools of thought represented the school in Cluj and Bucharest School.

School in Cluj believes that the opportunity is a distinct condition for the validity of administrative acts12. It was considered that the breach of the conditions of legality entails the cancellation or revocation of acts, while failure results in the condition of opportunity revocation or repeal13.

School in Bucharest has designed the opportunity as an element of legality and not as a condition of validity of the act on its own, saying that optical approach has the opportunity to view the School of Cluj can not be accepted on the ground that it gives the impression that there is a limit to the validity of administrative acts "beyond" the limits of legality14. Thus, in the view of the Bucharest School timeliness conditions arise as a subsystem of legal conditions in the broad sense of the term15.

3.Conclusion

We see that the vision is a dimension of legality opportunity creates an objective framework for analysis of discretion, including by courts, preventing the arbitrary exercise thereof16. When public authorities exercising the right of discretion in violation of competence limits prescribed by law or violation of rights and freedoms of citizens we face excess power according to Art. 2 (1) letter n) of Law no. 554/2004 on administrative contentious. Administrative acts performed with excess power can be appealed to the administrative court, as provided by Law no. 554/2004 on administrative contentious.

Footnote

1 This article was submitted to 6th International Conference "Perspectives of Business Law in the Third Millennium", 25 -26 November 2016, the Bucharest University of Economic Studies, Bucharest, Romania.

3 See Dana Apostol Tofan, Puterea discrefionarä §i excesul de putere al autoritafilor publice, All Beck, 1999, Bucharest, p. 65.

4 See Prosper Weil, Le droit administratif, 15e édition, Presses Universitaires de France, Paris, 1992, p. 89.

5 Meaning that the two are synonymous see Dacian Cosmin Drago§, Discupi privind posibilitatea anulärii unui act administrativ pe motiv de inoportunitate, "Revista Transilvana de Çtiinte Administrative", no. 1(10), 2004, p. 31, footnote. 2, where it stat es that the opportunity is called "discretionary power".

6 See Verginia Vedinas, Drept administrativ, 9th edition revised and updated, Universul Juridic, Bucharest, 2015, p. 103.

7 On the general principles of functioning of public administration see Catalin-Silviu Sararu, Principiile generale ale dreptului administrativ european în loan Alexandra, Catalin-Silviu Sararu a.o., Drept administrativ european, Lumina Lex, Bucuresti, 2005, p. 156-177; Catalin-Silviu Sararu, Consideratii cu privire la principiile spatiului administrativ european si la necesitatea includerii lor în proiectul Codului administrativ român, Caietul Stiintific ISAR no. 7/2005, Section for legal and administrative sciences, p. 12-41.

8 See Lucica Matei,Management public, Economica, Bucharest, 2001, p. 195.

9 See Ioan Alexandra, Dreptul §i managementul. Dihotomie sau complementaritate. Impactul informatizärii, All Beck, Bucharest, 2004, p. 43-47.

10 See Ilie Ioväna§, Dreptul administrativ si elemente ale stiintei administratiei, Publisher didactic and pedagogic, Bucharest, 1977, p. 240.

11 Idem, p. 240-242.

12 Ibidem, p. 240-242.

13 Ibidem, p. 231.

14 See Antonie Iorgovan, Tratat de drept administrativ, vol. II, 4 ed., All Beck, Bucharest, 2005, p. 42.

15 Idem, p. 49.

16 See Cätälin-Süvm Säraru in loan Alexandra, Cätälin-Süvm Säraru a.o., op. cit. (Drept administrativ european), 2005, p. 157.

References

Bibliography

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