Volume 35 (2008) / Issue 3
A court can rule on the proportionality of an administrative decision without infringing on the decision–making primacy of the administrative authorities. It can go quite far in doing so, as long as it uses the proper method. Characteristic for this method is not so much that it uses the proportionality principle as a rule under which the facts are subsumed, but as a framework for a discussion that is held between parties during the proceedings, under the direction of the court. If the court finds that the administrative body has not demonstrated a sufficient basis for its choices, it need not confine itself to an annulment on formal grounds. It can take its examination further and give parties the opportunity to consider alternative decisions. This method enables the court to come to a substantive and final judgment.
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