Discretionary Administrative Acts in Judicial Practice: Comparative Legal Analysis

Abstract

When administrative authorities exercise discretion, they have a kind of freedom to choose one decision. Such freedom however has never been complete due to the fact that laws have limited it. Thus, courts are often faced with the problem of assessing the legality of such decisions. The article has presented the criteria for such the assessment. However, this article demonstrates decisions from different countries. Since their judicial reasoning is largely similar, such judgments can be compared with each other. Similar reasoning also allows to formulate the foundation of a “general theory of administrative discretion”. This foundation is the same for many legal systems, but each contains distinctive features of this theory. Among the evaluation criteria, compliance with legal rules, (legality), achievement of governance goals, compliance with procedural requirements, as well as material grounds are highlighted. To evaluate discretionary acts, courts must use legal techniques. Authorities sometimes published “reference solutions” that can serve as guidelines for administrative authorities who are forced to exercise their discretion.