This study aims at presenting a more complex image of the principle of proportionality through
an analysis that combines the theoretical and the jurisprudential perspectives. The
precondition of this analysis is the classic opinion of this originally German principle
which requires a distinction between the objective and subjective conditions of
limitation/restriction of fundamental rights/freedoms, each of which shall be subject
to a separate test in order to determine whether limitations/restrictions thus
established are justified. However, we reveal the way in which such principle has been
accepted in the case-law of the European Court of Human Rights, of the European
Court of Justice and of the Constitutional Court of Romania, indicating the variations
achieved in their case-law. As concerns the acceptance manner of the principle of
proportionality in the case-law of the Constitutional Court of Romania, we analyze
the fundamental differences between the classic principle of proportionality, which
intrinsically characterizes the relative fundamental rights/freedoms, and the principle
of proportionality covered by Article 53 of the Constitution. Likewise, the focus is on
the analysis of subjective conditions of limitation of fundamental rights/freedoms in
the light of the proportionality test conducted by the Constitutional Court of Romania
and on the need for a precise constitutional review in order to avoid the development
of distorted forms of implementation of this principle
Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court