When is the principle of proportionality triggered?

The principle of proportionality is among the fundamental principles of modern public law and constitutes an integral element of the control of public power. Its operation, however, is neither unlimited nor autonomous.

On the contrary, its application presupposes its integration into a specific normative, constitutional and procedural framework, which determines both the scope and the intensity of judicial review.

In the context of administrative litigation in particular, the principle of proportionality does not function as a general annulment clause, but is activated under specific conditions, closely linked to the review of restrictions on constitutionally guaranteed rights.

The manner and timing of its activation were clarified with particular precision in a recent judgment of the Supreme Constitutional Court, delivered on appeal from a decision of the Administrative Court (Appeal No.128/2021, dated January 14).

The court was called upon to examine whether the principle of proportionality could constitute an autonomous ground for annulling an administrative act in the absence of a pleaded issue of unconstitutionality.

The rental levy and the first-instance ruling

The case concerned the owner of a residential property that was rented out and upon whom a rental levy was imposed for a specific year by the competent community council, which was later incorporated into a municipality. The levy was calculated at a rate of 2.5 per cent, within the maximum limit of 5 per cent prescribed by the relevant regulations.

The owner filed a recourse before the administrative court, arguing that the imposition of the levy resulted in double taxation, that no substantive investigation had preceded the decision, and that the act lacked adequate reasoning.

The court of first instance upheld the recourse and annulled the levy, holding that even where regulatory authorisation existed, the administration was obliged to establish or apply objective criteria for the calculation of the levy and to justify how it arrived at the specific amount imposed. The absence of such substantiation was found to violate the principle of proportionality and to render the act arbitrary.

The intervention of the Constitutional Court and the importance of the pleadings

On appeal, the Supreme Constitutional Court shifted the focus of the discussion, directing it squarely towards the pleadings. It did not examine whether the amount of the levy was reasonable per se, but whether the first-instance court was entitled to annul the decision on the basis of how the case had been procedurally framed.

As the court emphasised, the inquisitorial character of administrative proceedings “attenuates the adversarial element, but does not abolish the pleadings as a limiting framework for the issues in dispute.”

In simple terms, the court stressed that a judge may not search ex officio for new grounds of annulment beyond those clearly advanced by the applicant. In the present case, no explicit issue of unconstitutionality had been raised, nor was there an allegation that the regulations had been enacted ultra vires.

The core arguments concerned double taxation and the alleged lack of investigation. In light of these parameters, the Supreme Constitutional Court held that the first-instance court had “acted outside the pleadings to an extent not justified even within the context of administrative litigation.”

When the principle of proportionality is triggered

The court underlined that proportionality operates primarily as an instrument of constitutional review, where an issue arises concerning the restriction of fundamental rights or where the legality of the regulatory framework underpinning the financial burden is under scrutiny.

It does not constitute a general annulment clause for every administrative act that appears onerous or unfair.

Where the administration acts under bound competence and within the limits set by the applicable regulations, proportionality cannot serve as an autonomous basis for annulling an individual administrative act.

Likewise, the argument of double taxation could only acquire substantive legal significance had it been expressly framed as a constitutional issue, with reference to the obligation to contribute to public burdens in proportion to one’s means.

In other words, the principle of proportionality does not substitute procedural precision, nor does it cure deficiencies in the formulation of the grounds of recourse.

The judgment carries clear practical significance. It serves as a pointed reminder that proportionality cannot operate in isolation from its constitutional foundation, nor can it replace the procedural obligation of litigants to articulate their legal arguments with clarity.

At the same time, it reminds municipalities and community councils of the need to exercise their powers with due care, while making it equally clear that judicial protection does not depend solely on a citizen’s sense of injustice.

It reinforces institutional clarity regarding the distinction between legality review and constitutional review, thereby safeguarding both administrative action and the coherence of administrative justice.

This is a jurisprudential intervention that promotes legal certainty and consolidates the functioning of the rule of law on stable doctrinal foundations.