ALTERUM Centre for Research and Analysis of Financial System is the unit of Warsaw Institute of Banking. It was established in December 2012. The scope of its activity includes scientific research and analysis related to the entire financial system, particularly banking industry, capital market, insurance and public finance. The Center deals with preparing and presenting studies, analyzes and reports from theoretical and practical point of view. The special attention is dedicated to impact assessments of regulations. The authors and experts are representing academic and financial institutions, private and public.
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Lech Kurkliński (PhD)


Proposal of a model for assessing the observance of the principle of proportionality (OPP)
Stanisław Kasiewicz, Lech Kurkliński

In this article an attempt is made to assess regulatory impact with reference to a popular principle of proportionality. However, this principle undergoes large modifications; its interpretation is broadened and it gets adapted to the factual assessment of legislative processes. The origin of the principle of proportionality cannot be indicated unambiguously. It has many dimensions; its functions, components and scope of use are often hardy noticeable, and the scope of use depends largely on the legal system and the legislative context. In the everyday interpretation, its essence comes down to the use of a relevant tool, so that the statement “Never use a cannon to kill a fly” does not become applicable. The origin of the principle of proportionality is attributed to a ruling of the European Court of Justice of 1956 that established it as a general principle of Community law. The notion of the principle of proportionality has evolved; it has many alternative terms. For the purpose of this paper, the following definition is adopted: “the principle of proportionality requires that acts of Community institutions not to exceed the limits of what is adequate and necessary to meet justified objectives set out by a specific regulation; it means that when there is a choice between several adequate means, the least restrictive means should be chosen, whereas arising inconveniences should not be excessive as compared to the intended objectives”. Thus, the principle of proportionality includes three significant elements: adequacy, necessity and proportionality sensu stricto. Consequently, the observance of the principle of proportionality in the law-making process comes down to three significant stages. The first one is interpretation of the subjective scope of at least three abovementioned components. The second stage consists in transformation of the adopted scope into clear and quite simple criteria. The third stage is attributing relevant measures to particular criteria. The proposed approach to regulatory impact assessment has been termed as the model of the Observance of the Principle of Proportionality (OPP). In the article, the authors present the model assumptions, identify and particularize the criteria of main areas of the principle of proportionality, namely, the principle of adequacy, necessity and proportionality sensu stricto, and then determine its scoring methods. The final result of the article is a synthetic calculation: an ordered measure of the observance of the principle of proportionality for a specific regulation.

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