chapter  6
15 Pages

Balancing rule of law and national administrative discretion – a dilemma for a European democracy

If administrative authorities were allowed to decide upon whether an action or a transaction is to be accepted only upon the basis of their own judgement, it would unavoidably reduce the ability of citizens to know the legal consequences of their intended action. Hence, were a legal system to be based upon a strict version of the principle of rule of law, there would be little room for bureaucratic discretion. This would make it more diffi cult to adopt administrative decisions that rely on particular administrative rationalities or on negotiation, deliberation and consultation processes with the affected interests. On the other hand, without a rule of law principle, the door would be left wide open for the arbitrary use of public power, for corruption and the misuse of power. Thus the implementation of a substantive rule of law principle faces a dilemma between protecting individuals against the perverted use of public powers and undermining administrative rationality.