The principle of proportionality reflected in the case-law of the Constitutional Court of Romania. German constitutional influences Cover Image
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Receptarea principiului proporţionalităţii în jurisprudenţa Curţii Constituţionale a României. Influenţe constituţionale germane
The principle of proportionality reflected in the case-law of the Constitutional Court of Romania. German constitutional influences

Author(s): Mona-Maria Pivniceru, Karoly Benke
Subject(s): Law, Constitution, Jurisprudence
Published by: Universul Juridic
Keywords: constitutional review; principle of proportionality; proportionality test; theory of phases; limitation/restrictions of fundamental rights/freedoms;

Summary/Abstract: This study aims at presenting a more complex image of the principle of proportionality through an analysis that combines the theoretical and the jurisprudential perspectives. The precondition of this analysis is the classic opinion of this originally German principle which requires a distinction between the objective and subjective conditions of limitation/restriction of fundamental rights/freedoms, each of which shall be subject to a separate test in order to determine whether limitations/restrictions thus established are justified. However, we reveal the way in which such principle has been accepted in the case‐law of the European Court of Human Rights, of the European Court of Justice and of the Constitutional Court of Romania, indicating the variations achieved in their case‐law. As concerns the acceptance manner of the principle of proportionality in the case‐law of the Constitutional Court of Romania, we analyze the fundamental differences between the classic principle of proportionality, which intrinsically characterizes the relative fundamental rights/freedoms, and the principle of proportionality covered by Article 53 of the Constitution. Likewise, the focus is on the analysis of subjective conditions of limitation of fundamental rights/freedoms in the light of the proportionality test conducted by the Constitutional Court of Romania and on the need for a precise constitutional review in order to avoid the development of distorted forms of implementation of this principle.

  • Issue Year: 2015
  • Issue No: 1
  • Page Range: 51-71
  • Page Count: 21
  • Language: Romanian