About Proportionality as a Legal Criterion

The complexity of the positions of the subjects of administrative measures adopted and, more generally, of the plurality of individuals who may feel impaired by such measures in various ways, makes it necessary to define criteria for the combination of the many rights, interests and values involved in an administrative procedure. The principle of proportionality, based on quantitative but also qualitative assessment parameters, represents a criterion for establishing the difficult relationship between primary and secondary public interests, not as contained solely within the attributive rule of a certain administrative power but as may be inferred from the totality of principles and values of the legal system. From a procedural point of view, given the heterogeneous nature of the proportionality control assigned to Italian judges and to the Court of Justice of the European Union, it is necessary to find common traits: the fact that the judge is guided from a logical and argumentative point of view by all three criteria of control (suitability, necessity and proportionality stricto sensu) facilitates the performance of an effective assessment of the balancing of interests. Without overrunning into the context of the administrative merit, and by observing how the administrative authorities reached the proportionality of the measure, the judge essentially uses those physiologically open links between proportionality, fairness and justice, all of which relate to the exercise of administrative power.