Pluralism, deference and the margin of appreciation doctrine

European Law Journal

Volumn 17, Issue 1, 2011, Pages 80-120

  Gerards, Janneke ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

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[No Author keywords available]

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EID: 78650708734     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2010.00540.x     Document Type: Article

References (326)

1. The expression and prefix 'EU' will be used in this article, except for the situation in which specific reference is made to the European Community ('EC' or 'Community'). The term 'EU courts' is used to indicate both the European Court of Justice (ECJ) and the Court of First Instance; now the General Court.
2. This was different at the end of the
3. J.H.H. Weiler, The Constitution of Europe (Cambridge University Press1999
4. N. MacCormickThe Maastricht-UrteilSovereignty Now',1 European Law Journal1995259
5. I. MaherCommunity Law in the National Legal OrderA Systems Analysis', (1998) 36 Journal of Common Market Studies1998237
6. M. KummWho is the Final Arbiter of Constitutionality in Europe?Three Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice',36 Common Market Law Review 3511999
7. N. WalkerThe Idea of Constitutional Pluralism', 65 Modern Law Review 3172002
8. M. Poiares MaduroContrapunctual LawEurope's Constitutional Pluralism in Action', in N. Walker (ed), Sovereignty in Transition. Essays in European Law (Hart2003501
9. M. Poiares MaduroSovereignty in EuropeThe European Court of Justice and the Creation of a European Political Community', in M.L. Volcansek and J.F. Stack Jr (eds), Courts Crossing Borders. Blurring the Lines of Sovereignty (Carolina Academic Press200543
10. Walker, 'The Idea of Constitutional Pluralism', ibid, at 337. Other explanatory terms and notions also have some value, such as the notion of 'multi-levelness': F. Mayer, The European Constitution and the Courts. Adjudicating European Constitutional Law in a Multilevel System, Jean Monnet Working Paper 9/03, at available at >36-37
11. also mentioning a variety of other notions. However, the notion of pluralism will be used in this article since it is used in legal scholarship most frequently.
12. L. BesselinkEditorial: "The Law of Laws"-Overcoming Pluralism', 4 European Constitutional Law Review395-3972008
13. Kumm, op cit n 3 supra, at 375-376, formulating a set of constitutional principles providing a normative framework for the assessment of doctrines dealing with the relationship between the ECJ and the national courts. See more elaborately M. Kumm, 'The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty', (2005) 11 European Law Journal 262, at297-2982005
14. MacCormick, op cit n 3 supra, at 265, stating that both national and EU courts should have regard to the consequences and impact of their judgments on the other legal order.
15. There is clear need for such solutions; Eijsbouts and Besselink, op cit n 5 supra, at396
16. L.R. Helfer and A.M. SlaughterToward a Theory of Effective Supranational Adjudication', 107 Yale Law Review 273, at 2851997
17. D. SheltonThe Boundaries of Human Rights Jurisdiction in Europe', (2003) 13 Duke Journal of Comparative and International Law 95, at 136, indicating that the approach of the ECJ is already similar to that of the ECtHR. It is argued here, however, that express recognition of such a doctrine might provide clarity and predictability in the ECJ's case-law and might bolster good relations between national courts and European courts.2003
18. M. ShapiroThe European Court of Justice', in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999), 321, at 326. However, Mayer has shown that there are still important national highest courts that do not or only rarely make preliminary references to the ECJ and thus do not make effective use of the most important instrument for interaction and cooperation between the European and the national court level: Mayer, op cit n 4 supra, at 4 ff. According to Mayer, this points to the potential for disobedience (at 22).1999
19. Weiler, op cit n 2 supra, at 192 ff, and Helfer and Slaughter, op cit n 9 supra, at 292. See also B. De Witte, 'Direct Effect, Supremacy and the Nature of the Legal Order', in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999), 177, at 193. The fact that close cooperation with the supranational bodies provides additional empowerment to national courts has often been noted to stimulate their willingness to accept European judgments and interpretations: K. Alter, 'Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration', in A.M. Slaughter, A. Stone Sweet and J.H.H. Weiler (eds), The European Court and National Courts-Doctrine and Jurisprudence. Legal Change in its Social Context (Hart, 1998227-242
20. W. Mattli and A.M. SlaughterThe Role of National Courts in the Process of European Integration: Accounting for Judicial Preferences and Constraints', in Slaughter et al, ibid,253-258
21. Weiler, op cit n 2 supra, at 197
22. Maduro, 'Sovereignty in Europe, op cit n 3 supra, at 51-52. See also A. Stone Sweet, The Judicial Construction of Europe (Oxford University Press2004
23. A.M. SlaughterJudicial Globalization', (2000) 40 Virginia Journal of International Law 1107. Further explanations have been found in the quality and persuasive force of the EU courts' reasoning (Helfer and Slaughter, op cit n 9 supra, at 307 ff, in particular at 318), in the gradual and incremental way in which these courts have developed their judicial powers (Shapiro, op cit n 11 supra, at 3242000
24. R.B. AhdiehBetween Dialogue and Decree: International Review of National Courts', (2004) 79 New York University Law Review 2045), in their recognition of the need for cooperation and deference (A.M. Slaughter, 'A Global Community of Courts', (2003) 44 Harvard International Law Journal 191, at 217), in the authority and neutrality of the European judges, and in a number of contextual and functional factors such as the relative cultural and political homogeneity of the polity, the economic nature of the European Communities and the empowerment by EU law of individual legal actors (Helfer and Slaughter, op cit n 9 supra, at 300, 312 and 3352003
25. Shapiro, op cit n 11 supra, at 328; Alter, ibid, at 238). To all probability it is the combination of all of these factors that really explains the present level of cooperation and acceptance; see Stone Sweet, ibid, at 20 ff.
26. For an overview of relevant developments in both case-law and scholarship on the topic, see, eg, Weiler, op cit n 2 supra, at 288; Mayer, op cit n 4 supra, at 10 ff. Most recently, the German Federal Constitutional Court (Bundesverfassingsgericht) has stressed in its Lisbon judgment that the Member States remain the masters of the treaties and that the 'Constitution of Europe' remains a derived fundamental order (para 231). As a result, the Federal Constitutional Court retains the power to exercise both ultra vires review and identity review (ie the establishment of a violation of German constitutional identity, which may have the effect that Community law or Union law is declared inapplicable in Germany) (para 241). See Bundesverfassungsgericht, 2 BvE 2/08, Judgment of 30 June available at (English translation provided by the German Federal Constitutional Court).2009
27. See, in particular, the Lisbon judgment of the German Federal Constitutional Court, ibid, para 231.
28. De Witte, op cit n 12 supra, at 199 ff. The German Federal Constitutional Court has named this the principle of openness towards European law (Europarechtsfreundlichkeit) (Lisbon judgment, ibid, para 225). This means that, in fact, there is no hierarchy between amongst Community courts and that the ECJ does not stand on top of a Community legal system; see J. Komárek, 'Federal Elements in the Community Judicial System: Building Coherence in the Community Legal Order', 42 Common Market Law Review 9, at 10.2005
29. D. Chalmers and A. TomkinsEuropean Union Public Law (Cambridge University Press,2007
30. ibid, at 201. See also the aforementioned Lisbon judgment, n 13 supra.
31. Chalmers and Tomkins, ibid, at 204. See also De Witte, op cit n 12 supra, at 191 and 199 ff.
32. Maduro, 'Contrapunctual Law', op cit n 3 supra, at 521. See also Mayer, op cit n 4 supra, at 20; Stone Sweet, op cit n 12 supra, at 91; Komárek, op cit n 15 supra, at 10.
33. V. SkourisThe Position of the European Court of Justice in the EU Legal Zeitschrift für öffentliches Recht 323, at 328 Order and its Relationship with National Constitutional Courts2005
34. A.M. SlaughterA Typology of Transjudicial Communication', 29 University of Richmond Law Review 99, at 1121994
35. Slaughter, 'Judicial Globalization', op cit n 12 supra, at 1108; Alter, op cit n 12 supra, at 232. For definitions and characteristics of 'judicial dialogue', see Slaughter, 'A Global Community of Courts', op cit n 12 supra, at 195 ff (referring in particular to 'constitutional cross-fertilisation' and 'constitutional borrowing' by national courts who build on each other's opinions on basis of mutual respect) and Ahdieh, op cit n 12 supra, at 2050 ff (describing judicial dialogue as a symbiotic relationship among judicial institutions who actively and voluntarily engage and cooperate with each other).
36. L.R. Helfer Forum Shopping for Human Rights', 148 University of Pennsylvania Law Review 285, at 3491999
37. Ahdieh, op cit n 12 supra, at 2068. See in the same vein Slaughter, op cit n 20 supra, at 125 and Komárek, op cit n 15 supra, at 10.
38. Ahdieh, ibid, at 2035.
39. Ahdieh, ibid, at 2035 and 2088 ff.
40. Other terms have been conceived as well-De la Mare speaks, for example, of 'discourse' or 'discursive review': T. de la Mare, 'Article 177 in Social and Political Context', in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999), 215, at 241. He reserves the term, however, specifically for the preliminary rulings procedure. The notion of 'dialectic review' seems to have a broader use, for which reason it will be used instead of alternative terms or notions.1999
41. Ahdieh, op cit n 12 supra, at 2074 and 2077; also Slaughter, op cit n 20 supra, at124-125
42. Alter, op cit n 12 supra, at 232; Weiler, op cit n 2 supra, at 193
43. A. RosasThe European Court of Justice in ContextForms and Patterns of Judicial Dialogue1 European Journal of Legal Studies 1, at 6-7
44. Ahdieh, op cit n 12 supra, at 2157 and de la Mare, op cit n 25 supra, at 241 ff2007
45. For other reasons that explain the success of the preliminary rulings procedure as a dialectic mechanism, see in particular Alter, ibid, at 242 and 249, explaining the important role of the procedure in the 'power play' between higher and lower courts, a kind of competition that in itself bolsters the influence of the ECJ's judgments.
46. J. WoutersNational Constitutions and the European Union', (2000) 27 Legal Issues of Economic Integration 48. Legal scholars have often criticised the use both courts make of this method; see, eg, De Witte, op cit n 12 supra, at 878. Nevertheless, it would appear that the rhetorical force of this instrument is very strong and the European courts really seem to succeed in convincing national states by using it (cf, eg, F. Ost, 'The Original Canons of Interpretation of the European Court of Human Rights', in M. Delmas-Marty and Ch. Chodkiewicz (eds), The European Convention for the Protection of Human Rights (Martinus Nijhoff1992
47. About the importance of this, see also Komárek, op cit n 15 supra, at 30.
48. See Slaughter, op cit n 20 supra, at 125. See, however, more critically, Alter, op cit n 12 supra, at 31, stating that such persuasive force is indeed of some importance, yet it cannot wholly explain the acceptance of ECJ doctrine. Indeed, it can be argued that persuasive force is only one of various elements explaining the success of the existing dialectic relationship between the European courts and the national courts.
49. Maduro, 'Contrapunctual Law', op cit n 3 supra, at 534, stating that the increased discretion left to national courts by the ECJ is of particular importance if applied in areas of possible conflict with national constitutional law. Also see Ahdieh, op cit n 12 supra, at
50. Whether such values as openness, transparency and participation of affected actors (stakeholders) should preferably be protected and furthered in an architecture of 'new governance', 'constitutionalism', 'rule of law' or 'Rechtsstaat', is of limited importance here (see for an overview G. de Búrca and J. Scott, 'Introduction: New Governance, Law and Constitutionalism', in G. de Búrca and J. Scott (eds), Law and New Governance in the EU and the US (Hart, 2006), 1, in particular at 2 ff). More relevant to the subject of this article is the relationship between political actors and the courts. Even in a setting of 'new governance', it is clear that the courts are less able than other actors to meet directly these important values-their task is primarily to 'police the borders' and check whether such values have been sufficiently guaranteed, not to substitute their own judgment for that of regulative or policy-making bodies (J. Scott and S.P. Sturm, Courts as Catalysts: Rethinking the Judicial Role in New Governance, Columbia Law School Public Law & Legal Theory Working Paper Group (Paper Number 07-146), at 9 and 12, available at ).
51. On the value of a doctrine of deference in this respect, see A.L. Young, 'In Defence of Due Deference', 72 Modern Law Review 554, at 555. See however Scott and Sturm, ibid, at 5.2009
52. E.T. SwaineSubsidiarity and Self-Interest: Federalism at the European Court of Justice', 41 Harvard International Law Journal 1, at 63-642000
53. J.H. ElyDemocracy and Distrust (Harvard University Press1980
54. J.H. Jans et alEuropeanisation of Public Law (European Law Publishers, 2007), at 152. See also J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff, at 249, explaining that the same reasoning may have inspired the ECtHR to develop its margin of appreciation doctrine.2009
55. T. TridimasThe General Principles of EC Law (Oxford University Press, 2nd edn2006
56. This label has been developed in the USA; it indicates a slightly more intensive judicial scrutiny than real marginal review (see Motor Vehicle Manufacturers Ass'n v State Farm Mutual Automobile Insurance Co 463 US 291983
57. see more elaborately P. Craig, EU Administrative Law (Oxford University Press2006
58. M. TushnetTaking the Constitution Away from the Courts (Princeton University Press1999
59. J.H. GerardsJudicial Review in Equal Treatment Cases (Martinus Nijhoff2005
60. Scott and Sturm, op cit n 34 supra, at 2 and 6.
61. See, with references, Gerards, op cit n 42 supra, at 80.
62. Craig, op cit n 40 supra, at 657.
63. J.H. GerardsIntensity of Judicial Review in Equal Treatment Cases', (2004) 51 Netherlands International Law Review 135, at 140 and, critically, J.C. Rutten, 'Elasticity in Constitutional Standards of Review: Adarand Constructors Inc. v. Pena and Continuing Uncertainty in the Supreme Court's Equal Protection Jurisprudence' 70 Southern California Law Review 591, at 634. 1997
64. Indeed, it is valuable to do so, since the 'sliding scale' model does not offer much in terms of clarity and predictability-see Rutten, op cit n 46 supra, at 634. See also J. Rivers, 'Proportionality and Variable Intensity of Review', (2006) 65 Cambridge Law Journal 174, at 203, distinguishing between a large, a moderate and a small degree of restraint.2006
65. See Gerards, op cit n 42 supra, at 82 and 675 ff, developing a variety of standards of review to be used in equal treatment cases; Craig, op cit n 40 supra, at 468 ff, analysing the standards applied by the ECJ and the Court of First Instance.
66. J. SnellGoods and Services in EC LawA Study of the Relationship 174. Between the Freedoms (Oxford University Press2002
67. J. Schwarze, European Administrative Law (Sweet & Maxwell, rev 1st edn, 677 and , considering that there are reasons to state that, in the area of European law, the principle has constitutional status or even the status of a fundamental right. See also Tridimas, op cit n 39 supra, at 136-137 and Jans et al, op cit n 38 supra, at 146.2006718-726
68. Tridimas, op cit n 39 supra, at 137. See also Schwarze, ibid, at 681 and G. de Búrca, 'The Principle of Proportionality and its Application in EC Law',Yearbook of European Law 105, at114-1151993
69. See generally O. Koch, Der Grundsatz der Verhältnismaßigkeit in der Rechtsprechung des Gerichtshofs der Europäische Gemeinschaften (Duncker & Humblot2003
70. F.G. JacobsRecent Developments in the Principle of Proportionality in European Community Law', in E. Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart)1; de Búrca, op cit n 54 supra, at112-1131999
71. Jans et al, op cit n 38 supra, at Importantly, however, although all of the three sub-tests are recognised and used in European law, the ECJ appears to be rather ambiguous as regards their application. See, more elaborately, Koch, ibid, at 199 ff148-149
72. Jans et al, op cit n 38 supra, at 148 and Tridimas, op cit n 39 supra, at 139 (arguing that really only two subtests are applied).
73. J.M. O'FallonAdjudication and Contested Concepts: The Case of Equal Protection', (1979) 54 New York University Law Review 19, at 43 and T.A. Aleinikoff, 'Constitutional Law in the Age of Balancing', 96 Yale Law Journal 943, at 973-974. See more specifically for the EU courts, de Búrca, ibid, at 1071987
74. de Búrca, ibid, at108-109
75. J.H. JansProportionality Revisited Legal Issues of European Integration 482000
76. J. SnellTrue Proportionality and Free Movement of Goods and Services', European Business Law Review 48, at50-512000
77. B. SchuelerMethods of Application of the Proportionality Principle in Environmental Law', (2008) 35 Legal Issues of European Integration 231, at233-2342008
78. See, in particular, Snell, ibid, at 51.
79. This is a well-known and carefully researched premise. For some important case-law analyses underlying this premise, see, eg, de Búrca, op cit n 54 supra, at 111 ff
80. Gerards, op cit n 42 supra, at 307 ff; Craig, op cit n 40 supra, at 704 ff
81. Tridimas, op cit n 39 supra, at 138 ff.
82. The case-law analysis has been supplemented by a study of cases which are often mentioned in scholarly literature on the principle of proportionality or on intensity of judicial review; in particular Craig, op cit n 40 supra; Schwarze, op cit n 53 supra
83. Tridimas, op cit n 39 supra; Gerards, op cit n 42 supra (in the context of non-discrimination).
84. It is then rather a test of excessiveness; Schwarze, ibid, at 861.
85. Craig, op cit n 40 supra, at 472.
86. In particular Gerards, op cit n 46 supra
87. Gerards, op cit n 42 supra, at 357 ff
88. Craig, op cit n 40 supra, at 472, 477 and 479.
89. ibid, at 704; Wouters, op cit n 29 supra, at 56; Tridimas, op cit n 39 supra, at 193. See, eg, Case C-36/02, Omega Spielhallen[2004] ECR I-9609
90. Case C-24/00, Commission v France (vitamins and caffeine)ECR I-1277 2004
91. Case C-387/99, Commission v Germany (vitamin preparations)ECR I-37512004
92. Case C-463/01, Commission v Germany (German bottles) ECR I-117052004
93. Case C-41/02, Commission v Netherlands (vitamins and minerals) ECR I-113752004
94. Case C-319/05, Commission v Germany (garlic capsules)ECR I-98112007
95. Case C-444/05, Stamatelaki ECR I-31852007
96. Case C-297/05, Commission v Netherlands (identification and roadworthiness of vehicles) ECR I-74672007
97. Case C-161/07, Commission v Austria (work permit exception certificates for self-employed) (unreported)
98. Case C-265/06, Commission v Portugal (tinted film on car windows) ECR I-22452008
99. Case C-88/07, Commission v Spain (medicinal herb products) (unreported)
100. Case C-169/07, Hartlauer Handelsgesellschaft (unreported).
101. Case C-444/05, Stamatelaki ECR I-31852007
102. Case C-297/05, Commission v Netherlands (identification and roadworthiness of vehicles) ECR I-74672007
103. Case C-438/05, Viking Line ECR I-107792007
104. Case C-341/05, Laval ECR I-117672007
105. Case C-265/06, Commission v Portugal (tinted film on car windows) ECR I-22452008
106. Case C-88/07, Commission v Spain (medicinal herb products) (unreported); Case C-169/07, Hartlauer Handelsgesellschaft (unreported).
107. Case C-76/90, Säger[1991] ECR 42211991
108. Case C-36/02, Omega Spielhallen ECR I-96092004
109. Case C-463/01, Commission v Germany German bottles) ECR I-11705.2004
110. Case C-319/05, Commission v Germany (garlic capsules) ECR I-98112007
111. Case C-161/07, Commission v Austria (work permit exception certificates for self-employed) (unreported)
112. Case C-88/07, Commission v Spain (medicinal herb products) (unreported).
113. Case C-387/99, Commission v Germany (vitamin preparations)[2004] ECR I-3751; Case C-444/05, Stamatelaki ECR I-31852007
114. Case C-161/07, Commission v Austria (work permit exception certificates for self-employed)(unreported)
115. Case C-297/05, Commission v Netherlands (identification and roadworthiness of vehicles)ECR I-74672007
116. Case C-319/05, Commission v Germany (garlic capsules)ECR I-98112007
117. Case C-265/06, Commission v Portugal (tinted film on car windows) ECR I-2245.2008
118. Joined Cases C-184/02 and C-223/02, Spain and Finland v European Parliament and Council (self-employed drivers)[2004] ECR I-7789, in which the court mentioned that the measure harmed freedoms central to Community law, such as the freedom to pursue an occupation and the freedom to conduct a business (para 51), but the measure was taken in the area of the common transport policy, in which the Community legislature enjoys wide discretion (para 56).
119. Jans, op cit n 57 supra, at 253; Craig, op cit n 40 supra, at 706.
120. Case 178/84, Commission v Germany (Rheinheitsgebot)ECR 1227, para 47.1987
121. Case 40/82, Commission v UK (Poultry)[1982] ECR 2793, in particular paras 40 and 41; see also the opinion of AG Capotorti at 2845 and de Búrca, op cit n 54 supra, at 131-132. See also Sir Gordon Slynn, 'The Concept of the Free Movement of Goods and the Reservation for National Action under Article 36 EEC Treaty', in J. Schwarze (ed), Discretionary Powers of the Member States in the Field of Economic Policies and their Limits under the EEC Treaty (Nomos Verlagsgesellschaft, 17, at 21; de Búrca, ibid, at 139; Wouters, op cit n 29 supra, at 56.1987
122. Case C-444/05, Stamatelaki[2007] ECR I-3185 (absolute exclusion of reimbursement of the cost of treatment provided in a private hospital in another Member State)
123. Case C-319/05, Commission v Germany (garlic capsules ECR I-9811, para 892007
124. Case C-88/07, Commission v Spain (medicinal herb products) (unreported), para 91.
125. Case C-444/05, Stamatelaki[2007] ECR I-3185, para 35.2007
126. See, eg, Joined Cases C-1/90 and C-176/90, Aragonesa ECR I-4151, in which the court held, with respect to a Spanish prohibition on advertisements for drinks with an alcohol content higher than 23%: 'A national measure such as that at issue restricts freedom of trade only to a limited extent since it concerns only beverages having an alcoholic strength of more than 23 degrees. In principle, the latter criterion does not appear to be manifestly unreasonable as part of a campaign against alcoholism' (para 17). In this case, the lack of a serious interference was combined with the lack of consensus on the prevention of alcoholism (see section IIIBb). See also Gerards, op cit n 42 supra, at 339.1990
127. Case C-499/06, Nerkowska ECR I-39932008
128. Case T-19/01, Chiquita Brands International ECR II-3152005
129. Joined Cases C-154/04 and C-155/04, Alliance for Natural Health[2005] ECR I-6451; Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04, ABNA[2005] ECR I-10423; Case C-504/04, Agrarproduktion Staebelow (unreported), Case C-326/05P, Industrias Quínicas del Vallés (unreported), Case C-375/05, Geuting[2007] ECR I-7983
130. Case C-491/06, Danske Svineproducenter ECR I-33392008
131. Case C-448/06, cp-Pharma (unreported), Case T-75/06, Bayer Crop-Science et al (unreported).
132. For cases in which national measures were at stake, see, eg, Joined Cases C-154/04 and C-155/04, Alliance for Natural Health[2005] ECR I-64512005
133. Case C-491/06, Danske Svineproducenter ECR I-3339.2008
134. See also de Búrca, op cit n 54 supra, at 148 and Tridimas, op cit n 39 supra, at 193
135. However, sometimes this is not really helpful for the court. See, eg, Case C-438/05, Viking Line[2007] ECR I-10779 and C-341/05, Laval ECR I-11767, in which the ECJ found on basis of the EC Treaty that the Community not only has an economic interest but also a social purpose, which meant that the provisions of the EC Treaty on free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy (Laval, paras 104-105; Viking Line, paras 78-79). This case thus disclosed a conflict between the aims of the treaty and did not provide any clue as to the proper level of intensity to be applied. In the end, the ECJ did not pay express attention to the question of intensity of review at all, probably because of the difficulties in harmonising the conflicting intensity determining factors.2007
136. See de Búrca, op cit n 54 supra, at 128; Snell, op cit n 49 supra, at 215
137. Craig, op cit n 40 supra, at 708.
138. Case C-36/02, Omega Spielhallen[2004] ECR I-9609. See also, eg, Case 41/74, Van Duyn[1974] ECR 1337, para 18 and Joined Cases C-65/95 and C-111/95, Shingara and Radiom ECR I-3343, para 30.1997
139. Case C-275/92, Schindler[1994] ECR I-1039, in which the ECJ held that national authorities need to have a sufficient degree of latitude to determine what is required ' in the light of the specific social and cultural features of each Member State, to maintain order in society, as regards the manner in which lotteries are operated, the size of the stakes, and the allocation of the profits they yield' (para 61)1994
140. see also, more elaborately, Case C-124/97, Läärä[1999] ECR I-6067, paras 36-39 and Joined Cases C-338/04, C-359/04 and C-360/04, Placania ECR I-1891, para 46.2007
141. Case C-434/04, Ahokainen and Leppik[2006] ECR I-9171, paras 32-33, concerning the prevention of alcohol abuse. also Craig, op cit n 40 supra, at 709.
142. Case 34/79, Henn and Darby[1979] ECR 3795, para 15 and Case 121/85, Conegate ECR 1007, para 14.1986
143. Case C-285/98, Kreil[2000] ECR I-69, para 24
144. see also Case C-83/94, Leifer[1995] ECR I-3231 and Case C-70/94, Werner[1995] ECR I-3189. See further Gerards, op cit n 42 supra, at 310 ff and 337 ff1995
145. Case C-244/06, Dynamic Medien Vertriebs GmbH (unreported), para 44.
146. Case C-141/07, Commissio Germany (supply of medicinal products) (unreported), para 51.
147. Case C-110/05, Commission v Italy (motorcycle trailers) (unreported), para 65. For overviews of the older case-law from which this trend appears, see in particular de Búrca, op cit n 54 supra, at 128 ff.
148. Joined Cases C-338/04, C-359/04 and C-360/04, Placania ECR I-1891.2007
149. Case C-141/07, Commission v Germany (supply of medicinal products) (unreported), para 58 (' the approach upheld by the Commission [the alternative measure, JHG] is likely to undermine the unity and balance of the system for the supply of medicinal products to hospitals in Germany and, consequently, the high level of public health protection which the Federal Republic of Germany seeks to achieve').
150. ibid, para 66 (' whilst it is true that it is for a Member State which invokes an imperative requirement as justification for the hindrance to free movement of goods to demonstrate that its rules are appropriate and necessary to attain the legitimate objective being pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions').
151. Joined Cases C-338/04, C-359/04 and C-360/04, Placania[2007] ECR I-1891, para 58
152. Case C-244/06, Dynamic Medien Vertriebs GmbH ECR I-505, para 52.2008
153. Wouters, op cit n 29 supra, at 52 ff.
154. Case C-379/89, Groener ECR 3967.1989
155. Case C-369/89, Piageme I ECR I-2971 and Case C-85/94, Piageme II[1995] ECR I-29551991
156. for a discussion of these cases, see Wouters, op cit n 29 supra, at 52.
157. As mentioned above, the ECJ generally offers the states some discretion in deciding about the need for measures to protect national security, but sometimes no particularly marginal assessment can be seen in such cases (Case C-367/89, Richardt ECR 4621)1991
158. see further de Búrca, op cit n 54 supra, at 134-135 and Gerards, op cit n 42 supra, at 338, n 462.
159. Craig, op cit n 40 supra, at 706.
160. Case C-192/01, Commission v Denmark ECR I-9693, para 43. See also Case C-41/02, Commission v Netherlands (vitamins and minerals)[2004] ECR I-11375.2003
161. Paras 45-47. See also Case C-41/02, Commission v Netherlands (vitamins and minerals)[2004] ECR I-11375, paras47-54
162. Craig, op cit n 40 supra, at 706; Tridimas, op cit n 39 supra, at 225
163. Gerards, op cit n 42 supra, at 335. See, however, Lord Slynn, who has correctly argued that even here the 'better placed' argument may be of some value, since the national authorities can usually better judge the national eating habits and the need to prohibit certain additives to prevent people from exceeding the maximum amounts (op cit n 74 supra, at 22).
164. Case C-448/06, cp-Pharma (unreported), para 28, in which the court stated that discretion was all the more justified with regard to a file which ' is particularly complex since it raises questions which are delicate and controversial from a scientific viewpoint', and pointed at the ongoing scientific uncertainty and divergent scientific opinions on the topic. Different from the cases about the precautionary principle, however, the court in this case really relied on the findings of the European Commission and did not exercise any kind of rigorous scrutiny.
165. de Búrca, op cit n 54 supra, at 118.
166. Craig, op cit n 40 supra, at668-669
167. Although it must be remarked that the discretion may be limited to some extent by the division of competence between the Community and the Member State, by fundamental rights, and by general principles such as the principle of subsidiarity.
168. Craig has termed such discretion 'jurisdictional discretion': Craig, op cit n 40 supra, at 433.
169. Joined Cases C-154/04 and C-155/04, Alliance for Natural Health ECR I-6451, para 522005
170. Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04, ABNA[2005] ECR I-10423, para 69; Case C-266/05P, Sison ECR I-1233, para 332007
171. Case C-326/05P, Industrias Químicas del Vallés ECR I-6557, para 752007
172. Case C-448/06, cp-Pharma (unreported), paras 28-30 (mentioning the situation where the need for restrictive measures is not supported by conclusive scientific evidence
173. See, however, Case C-266/05P, Sison ECR I-1233, paras 36-37 (referring to the very general criteria set out in a regulation and pointing at the preparatory documents from which it appeared that a broad discretion for the Council was envisaged2007
174. Case T-19/01, Chiquita Brands International[2005] ECR II-315, para 228 (referring to the common agricultural policy and Arts 34 and 37 EC); Case C-375/05, Geuting ECR I-7983, para 44.2007
175. Chiquita Brands International, ibid, para 228
176. For a somewhat comparable approach, see Case C-375/05, Geuting CR I-79832007
177. There are some cases in which the test is rather more elaborate
178. even then, however, the test closely follows the lines of the relevant measure and its legislative history-see, eg, Joined Cases C-154/04 and C-155/04, Alliance for Natural Health[2005] ECR I-6451, paras 55 ff2005
179. Case C-491/06, Danske Svineproducenter ECR I-3339, para 382005
180. Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04, ABNA[2005] ECR I-10423
181. de Búrca, op cit n 54 supra, at 146
182. See section IIIBc Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04, ABNA ECR I-10423. de Búrca, ibid, at 1232005
183. This situation differs from that analysed in section IIIBa, which concerned measures that were protective of fundamental rights and thereby harmed Community interests. In those cases the effect of the presence of fundamental rights is contrariwise-the Member States are afforded more discretion to protect these interest and, consequently, the court's test is rather marginal in character. This section concerns the opposite situation, in which national or Community measures clearly harm individual fundamental rights. See also Craig, op cit n 40 supra, at 672
184. Case C-368/95, Familiapress ECR I-3689, para 241997
185. For other examples, see in particular Craig, op cit n 40 supra, at672-673
186. Case C-71/02, Karner ECR I-3024, para 51.2004
187. See for a similar example Case C-491/01, British American Tobacco ECR I-11453, paras 123, 149 and 153, in which the court applied a marginal test to an interference with property rights.2002
188. Craig, op cit n 40 supra, at 471.
189. Craig argues that it is necessary for the Community courts to find some principled basis for distinguishing the areas where they are willing to engage in more intensive factual scrutiny from those where they are not.
190. Rosas, op cit n 27 supra, at 16-42.
191. D. NicolLessons from Luxembourg: Federalisation and the Court of Human Rights' 26 European Law Review-Human Rights Survey HR/1, at HR/3 and Helfer and Slaughter, op cit n 9 supra, at 2972001
192. Art 46 of the European Convention on Human Rights.
193. C. Warbrick "Federal" Aspects of the European Convention of Human Rights', 10 Michigan Journal of International Law 698, at 699. Nonetheless, the ECtHR has observed that the convention is more than 'just' an international convention (Application No 5310/71, Ireland v UK (IRA Case) Series A No 25, para 25; see Nicol, op cit n 146 supra, at HR/11).1989
194. See expressly Application No 8793/73, James and Others v UK Series A No 98, para 84, where the court stressed that there is no obligation to incorporate the convention into domestic law and reiterated that ' neither Article 13 nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention'. G. Ress, 'The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order', 40 Texas International Law Journal 359, at 374. Of course there is supervision on the execution of the judgments of the ECtHR by the Committee of Ministers, but this supervision is one of persuasion rather than of real force; Warbrick, ibid, at 705. Although this might seem to be an important difference between the EU legal order and the convention legal order, this may be nuanced to a certain extent by the fact that EU law, too, relies to a large extent on the constitutional arrangements of the EU Member States, albeit in a rather different manner; on this, see Wouters, op cit n 29 supra, at 33.2005
195. Application No 6538/74, Sunday Times v UK Series A No 30, para 59; see also Warbrick, op cit n 148 supra, at 719.
196. To the contrary, the court tends to stress its subsidiary position and the primary responsibility of the states to guarantee the rights protected by the convention. See recently also, eg, Application No 46598/06, Branko Tomašic v Croatia (unreported) 15 January 200973-74
197. Helfer and Slaughter, op cit n 9 supra, at 297. See also Nicol, who has indicated that '[o]n the spectrum of federalism the Court of Human Rights would sit somewhere between a classical international tribunal and the European Community's Court of Justice': Nicol, op cit n 146 supra, at HR/3.
198. Nicol, ibid, at HR/3.
199. Warbrick noted already in 1989 that ' [t]he European practice surprises because it interprets the Convention in a way which carries the provisions of the treaty so deeply into the legal systems of the member States, favoring a European standard over diverse national ones': Warbrick, op cit n 148 supra, at 699. See also Nicol, ibid, at HR/19 ('Gradually familiarity bred acceptance among national polities '). It is sometimes even derived from this factual development that the interpretations provided by the ECtHR could be regarded as generally binding; see, in particular, S. Beljin, 'Bundesverfassungsgericht on the Status of the European Convention of Human Rights and ECHR Decisions in the German Legal Order. Decision of 14 October 2004',1 European Constitutional Law Review 553, at 558-559, referring to the reasoning provided by the German Federal Constitutional Court in the Görgülü case (Bundesverfassungsgericht 2 BvR 1481/04 of 14 October 2004).2005
200. J.H. GerardsJudicial Deliberations in the European Court of Human Rights', in N. Huls, M. Adams and J. Bomhoff (eds), The Legitimacy of Highest Courts' Rulings. Judicial Deliberations and Beyond (T.M.C Asser Press, 407, at 410 ff2009
201. L.R. HelferRedesigning the European Court of Human Rights: Embeddedness as a Deep Stuctural Principle of the European Human Rights Regime' 19 European Journal of International Law 125.2008
202. Nicol, op cit n 146 supra, at HR/15 ff. For an elaborate analysis of the various ways in which the ECtHR has given indirect effect to the convention, see Christoffersen, op cit n 38 supra, at 367 ff.
203. See, eg, Application No 71503/01, Assanidze v Georgia ECHR 2004-II and Application No 27527/03, L v Lithuania (unreported) 11 September. This is further illustrated by the development of the instrument of 'pilot-judgments'. In these judgments, the court does not limit itself to finding a violation of the convention, but it also indicates with some precision which measures should be taken on the national level to compensate, repair or, if possible, end a violation2007
204. see, eg, Application No 31443/96, Broniowski v Poland ECHR2004
205. Application No 23032/02, Lukenda v Slovenia ECHR2005
206. Application No 35014/97, Hutten-Czapska v Poland (unreported) 19 June. See also Helfer, op cit n 155 supra, at 146 ff2006
207. In fact, the result of the ECtHR's approach is that national courts are empowered rather than weakened, since the ECtHR increasingly regards them as the primary enforcers of convention rights; see Nicol, op cit n 146 supra, at HR/18
208. Helfer and Slaughter, op cit n 9 supra, at 297
209. Helfer, op cit n 155 supra, at 130
210. Bundesverfassungsgericht 2 BvR 1481/04 of 14 October 2004. See in particular H.J. Papier, 'Execution and Effects of the Judgments of the European Court of Human Rights from the Perspective of German National Courts', (2006) 27 Human Rights Law Journal 1, at 2; M. Hartwig, 'Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights' 6 German Law Journal 869, at 8752005
211. see also Gerards, op cit n 155 supra, at 411
212. See most recently Lord Hoffmann, 'The Universality of Human Rights', Judicial Studies Board Annual Lecture (19 March), in particular paras 23 and 382009
213. Application No 1474/62, Belgian Linguistics Case Series A No 6, para I.B.10. See also Christoffersen, op cit n 38 supra, at 248.
214. See in particular Application No 5493/72, Handyside v UK Series A No 24, para 48. Helfer, op cit n 155 supra, at 128-129 and Christoffersen, ibid, at 229.
215. G. Letsas A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007), at 83. This also has practical advantages, as stressed by Helfer and Arai-Takahashi-if domestic judges and authorities act as 'first-line defenders' of convention rights, this will enhance judicial expediency and efficiency on the level of the ECtHR. Having regard to its limited resources, such a division of labour is of great value to the ECtHR: Helfer, op cit n 155 supra, at 128 and Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia)2002
216. Arai-Takahashi, ibid, at 240
217. Gerards, op cit n 42 supra, at 168; see also Helfer, op cit n 155 supra, at 134; Arai-Takahashi, op cit n 165 supra, at 241; Warbrick, op cit n 148 supra, at 716
218. See Arai-Takahashi, ibid, at 235; Lord Hoffmann, op cit n 162 supra; S. Greer, The European Convention on Human Rights. Achievements, Problems and Prospects (Cambridge University Press, 2006), at 224
219. P. Mahoney'Marvellous Richness of Diversity or Invidious Cultural Relativism?', (1998) 19 Human Rights Law Journal 1, at 12 and A. Ostrovsky, 'What's So Funny About Peace, Love, and Understanding? How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals', 1 Hanse Law Review 47, at 57.2005
220. R.St.J. Macdonald'The Margin of Appreciation', in R. St. J. Macdonald, F. Matscher and H. Petzold (eds), The European System for the Protection of Human Rights (Martinus Nijhoff), 83, at 123; Arai-Takahashi, op cit n 165 supra, at 236 Ostrovsky, ibid, at 58.1993
221. On the problematic translation from margin of appreciation into standards of review, see elaborately Christoffersen, op cit n 38 supra, at 265 ff and N. Lavender, 'The Problem of the Margin of Appreciation',4 European Human Rights Law Review 380, at 387 ff1997
222. A classic example of deferential review is the case of Application No 8793/73, James and Others v UK Series A No 98, in which the court allowed the national authorities a wide margin of appreciation in the context of property regulation. This wide margin corresponded to a lenient test of necessity, the court explaining that '[i]t is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way' (para 51). For other examples, see Application No 8777/79, Rasmussen v Denmark Series A No 87, para 41; Application No 36515/97, Fretté v France ECHR, para 42; Application No 69498/01, Pla and Puncernau v Andorra ECHR 2004-VIII, para 462002
223. Application No 73049/01, Anheuser-Busch Inc v Portugal (unreported) 11 January 2007, para 83; Application No 59894/0, Bulgakov v Ukraine (unreported) 11 September 2007; Application No 35991/04, Kearns v France (unreported) 10 January 2008, paras 80-84. See further Gerards, op cit n 42 supra, at 155; P. Mahoney, 'Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin', 11 Human Rights Law Journal 57, at 78 and 871990
224. See, eg, Application No 18215/06, Greenpeace eV and Others v Germany (unreported) 12 May(decision). In this case the applicants complained of the refusal by the German government to take specific measures against car manufacturers in order to reduce respirable car dust emissions of diesel vehicles. The ECtHR held that it has a fundamentally subsidiary role in this type of case. Bearing this role in mind, it held that ' the applicants have not shown-and the documents submitted do not demonstrate-that the Contracting State, when it refused to take the specific measures requested by the applicants, exceeded its discretionary power2009
225. Application No 36515/97, Fretté v France ECHR, para 42; Application No 11810/03, Maurice v France (unreported) 6 October 2005, paras 118 ff; Application No 6339/05, Evans v UK (unreported) 10 April 2007, paras 83 ff; Application No 75201/01, Grušovnik v Slovenia (unreported) 9 June 2009 (decision). However, even a procedural test, combined with a wide margin of appreciation, may result in a finding of a violation; see, eg, Application No 44362/04, Dickson v UK ECHR 2007-VIII, para 852002
226. See, eg, Application No 66746/01, Connors v UK (unreported) 27 May 2004, para 94. See also Application No 35082/04, Makhmudov v Russia (unreported) 26 July2007
227. Application No 13914/88, Informationsverein Lentia v Austria Series A No 276, paras 39 and 42; Application No 39293/98, Fuentes Bobo v Spain (unreported) 29 February 2000, para 49; Application Nos 30562/04 and 30566/04, S and Marper v UK (unreported) 4 December 2008119-120
228. S and Marper v UK, ibid103-104
229. For a conceptual analysis of the problems related to the court's application of the doctrine, see in particular Letsas, op cit n 165 supra, at 80 ff
230. For some recent examples, see Application No 69498/01, Pla and Puncernau v Andorra ECHR 2004-VIII; Application No 76900/01, Öllinger v Austria (unreported) 29 June2006
231. Application No 34438/04 Egeland and Hanseid v Norway (unreported) 16 April2009
232. Application No 28070/06 A v Norway (unreported) 9 April2009
233. See Application No 6303/05, Masaev v Norway (unreported) 12 May 2009, in which the court first stated that, according to settled case-law, it leaves 'a certain margin of appreciation'. It continued to state that '[i]n order to determine the scope of the margin of appreciation in the present case the Court must take into account what is at stake, namely the need to maintain true religious pluralism' (para 24). However, it did not conclude whether this means that the margin of appreciation should be wide or narrow, or something in between. As a result, the reader should derive any notion as to the applicable intensity of review from an interpretation of the substantive parts of the judgment, which is not how the margin of appreciation should work. See also Application No 29492/05, Kudeshkina v Russia (unreported) 26 February, where the court only mentioned that 'a certain margin' should be left, without clarifying the scope of the margin in the particular case.2009
234. See already MacDonald, op cit n 170 supra, at 85. Letsas has described this use as implying 'substantive concept' of the doctrine, which should not be confused with the 'structural concept' that primarily indicates the limits or intensity of review: Letsas, op cit n 165 supra, at 81. See, eg, Application No 34753/03, Phull v France ECHR2005
235. Application No 21277/05, Standard Verlags GmbH v Austria (No 2) (unreported) 4 June2009
236. in both cases the court found no violation of the convention since the national authorities remained within their margin of appreciation
237. Application Nos 30562/04 and 30566/04, S and Marper v UK (unreported) 4 December2008
238. Para 102. An even more elaborate version can be found in Application No 66746/01, Connors v UK (unreported) 27 May para 822004
239. If an interference with a fundamental right is very serious or even irreversible, the court expects stronger and more compelling reasons to be advanced in justification; see, eg, Connors v UK, ibid, para 86; Application Nos 46720, 72203/01 and 72552/01, Jahn and Others v Germany (unreported) 30 June, para 94. The court mostly combines the factor of the nature or seriousness of the interference with the factor of the importance of the right concerned, or it considers the seriousness of the interference primarily in its substantive review of the balance struck by the national authorities. For that reason, this factor will not be independently discussed in this section2005
240. See in particular Arai-Takahashi, op cit n 165 supra, at 206 ff
241. Judge Malinverni, concurring opinion in the case of Application No 34438/04, Egeland and Hanseid v Norway (unreported) 16 April, para 62009
242. For some recent examples, see Application No 59894/00, Bulgakov v Ukraine (unreported) 11 September 2007, para 43(c); Application No 44362/04, Dickson v UK ECHR 2007-VIII, para 78; Application Nos 30562/04 and 30566/04, S and Marper v UK (unreported) 4 December 2008, para 102. The ECtHR also often refers to the common ground argument in cases concerning the meaning and scope of the convention provisions-it is then used as an interpretive instrument, rather than as an intensity-determining factor (see recently, eg, Application No 3453/97, Demir and Baykara v Turkey (unreported) 12 November, paras 65-86). The specific case-law relating to the common ground argument as an interpretative instrument will not be discussed in the context of this article2008
243. Application No 5493/72, Handyside v UK Series A No 24, para 47
244. ibid. See also, eg, Application No 17419/90, Wingrove v UK ECHR1996
245. Application No 21830, X, Y and Z v UK ECHR 1997-II, para 44; Application No 44179/98, Murphy v Ireland ECHR2003
246. Application No 6538/74, Sunday Times v UK Series A No 30, para 46
247. See Application No 44362/04, Dickson v UK ECHR 2007-VIII, para 78; Application No 35991/04, Kearns v France (unreported) 10 January 2008, paras 74 and 83. In rare cases, however, it is precisely the existence of a European consensus that points to a wide margin of appreciation, namely in the situation that there is general agreement that interference with a certain convention right is acceptable. See, eg, Application No 5100/71, Engel and Others v Netherlands Series A No 22, para 72; Application No 36536/02, B and L v UK (unreported) 13 September2005
248. P. Mahoney'The Comparative Method in Judgments of the European Court of Human Rights: Reference Back to National Law', in G. Canivet, M. Andenas and D. Fairgrieve (eds), Comparative Law Before the Courts (BIICL, 135, at 146-147; P.G. Carozza, 'Propter Honoris Respectum: Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights', (1998) 73 Notre Dame Law Review 1217, at2004
249. For recent examples, see, eg, Application No 21132/05, TV Vest AS & Rogaland Pensjonistparti v Norway (unreported) 11 December, para 67 (referring to a comparative survey produced by the respondent government) and Application No 3545/04, Brauer v Germany (unreported) 28 May 2009, para 40 (referring to a European convention which is in force in respect of 21 Member States of the Council of Europe (but not in the respondent state) as a basis for finding a European consensus)2008
250. Ostrovsky, op cit n 169 supra, at 58; Carozza, op cit n 196 supra, at1233
251. Application No 28957/95, Christine Goodwin v UK ECHR 2002-IV, para 85. See also Application No 44306/98 Appleby v UK ECHR2003
252. See, eg, Application No 31253/96, McElhinney v Ireland ECHR2001
253. Application No 37112/9, Fogarty v UK ECHR2001
254. Mahoney, op cit n 193 supra, at 147
255. Application No 34438/04, Egeland and Hanseid v Norway (unreported) 16 April 2009. For another example, see Application No 44362/04, Dickson v UK ECHR 2007-VIII, para 81, in which the Grand Chamber gave a different interpretation to the fact that more than half of the contracting states allow for conjugal visits for prisoners than the Chamber did in its earlier judgment in the case (18 April)2006
256. Concurring opinion of Judge Malinverni
257. The other way around, the court has also sometimes indicated that the margin of appreciation will only play a limited role if the case does not concern an area of general policy, on which opinions within a democratic society may reasonably differ widely and in which the role of the domestic policy maker should be given special weight. See, eg, Application No 11002/05, Associated Society of Locomotive Engineers & Firemen (ASLEF) v UK ECHR2007
258. Judge Rozakis, dissenting opinion to the case of Application No 34438/04, Egeland and Hanseid v Norway (unreported) 16 April2009
259. See, eg, Application No 8793/73, James and Others v UK Series A No 98, para 46; Application Nos 10522/83, 11011/84, 11070/84, Mellacher and Others v Austria Series A No 169, para 45; Application No 20348/92, Buckley v UK ECHR1996
260. Application No 66746/01, Connors v UK (unreported) 27 May2004
261. Application Nos 46720/01, 72203/01, 72552/01, Jahn and Others v Germany (unreported) 30 June 2005, para 91; Application No 13378/05, Burden v UK (unreported) 29 April2008
262. Or a combination of both; see, eg, Application No 11810/03, Maurice v France (unreported) 6 October2005116-117
263. On this rationale, applied to the special deference the ECtHR appears to pay to national legislatures, see S. Marks, 'The European Convention on Human Rights and its "Democratic Society"' 66 British Yearbook of International Law 209, at 219 ff1995
264. Application No 23800/06, Shelley v UK (unreported) 4 January 2008 (decision); Application No 48939/99, Öneryildiz v Turkey ECHR2004
265. see also Application No 15339/02, Budayeva and Others v Russia (unreported) 20 March2008
266. See Arai-Takahashi, op cit n 165 supra, at 210. A classic example is Application No 9214/80, Abdulaziz, Cabales and Balkandali v UK Series A No 94, para 67. For a more recent example, see Application No 48321/99, Slivenko v Latvia ECHR 2003-X. It is remarkable, though, that the court does not mention at all the margin of appreciation doctrine in its case-law on expulsion of long-term immigrants. In fact, it seems to apply a rather strict test in these cases. See, eg, Application No 54273/00, Boultif v Switzerland ECHR2008
267. Application No 46410/99, Üner v Netherlands (unreported) 18 October 2006; Application No 42034/04, Emre v Switzerland (unreported) 22 May 2008. In the case of Application No 1638/03, Maslov v Austria (unreported) 23 June 2008, concerning the expulsion or a minor, the court even held that 'very serious reasons' were required in justification, which clearly indicates a very strict test, probably mainly inspired by the seriousness of the interference. In other immigration cases, the factors determining the margin of appreciation seem to be merged with the factors used to examine the proportionality of a certain measure; see, eg, Application No 16351/03, Konstantinov v Netherlands (unreported) 26 April2007
268. See, eg, Application No 44774/98, Leyla Sahin v Turkey ECHR2005
269. see also Application No 6339/05, Evans v UK ECHR2007
270. Application No 27058/05, Dogru v France (unreported) 4 December2008
271. Arai-Takahashi, op cit n 165 supra, at 206-207 and Letsas, op cit n 165 supra, at 94
272. Application No 21830/93, X, Y and Z v UK ECHR1997
273. Application No 36515/97, Fretté v France ECHR2002
274. Application No 61564/00, Elli Poluhas Dödsbo v Sweden ECHR2006
275. Application No 6339/05, Evans v UK ECHR2007
276. Application No 35991/04, Kearns v France (unreported) 10 January2008
277. For the latter situation, see, eg, Application No 25088/94, Chassagnou v France ECHR1999
278. Application No 6339/05, Evans v UK ECHR2007
279. Application No 33932/06, Todorova v Italy (unreported) 13 January 2009, para 71. On this, see also J. Bomhoff, '"The Rights and Freedoms of Others": The ECHR and its Peculiar Category of Conflicts Between Individual rights', in E. Brems (ed), Conflicts between Fundamental Rights (Intersentia), 6192008
280. Arai-Takahashi, op cit n 165 supra, at 213. See, eg, Application No 20022/92, Anne-Marie Andersson v Sweden ECHR1997
281. Application No 25390/94, Rekvényi v Hungary ECHR1999
282. Application No 43278/98, Velikovi and Others v Bulgaria (unreported) 15 March2007179-180
283. see also, mutatis mutandis, Application No 33629/06, Vajnai v Hungary (unreported) 8 July paras 49 ff2008
284. For a classic example, see Application No 6301/73, Winterwerp v Netherlands Series A No 33, para 46; see more recently, eg, Application No 69498/01, Pla and Puncernau v Andorra ECHR.See also Arai-Takahashi, op cit n 165 supra, at 239 and Christoffersen, op cit n 38 supra, at 2762004
285. See the general formula quoted section IVCa
286. Application No 6339/05, Evans v UK ECHR2007
287. Application No 44362/04, Dickson v UK ECHR2007
288. Application Nos 30562/04, 30566/04, S and Marper v UK (unreported) 4 December, para 102. Arai-Takahashi, op cit n 168 supra, at 2272008
289. For a good overview of the court's case-law in this respect, see Application No 1543/06, Baczkowski and Others v Poland (unreported) 3 May, paras 61 ff (' the Convention was designed and aimed to promote and maintain the ideals and values of a democratic society'). See also in particular Marks, op cit n 207 supra, at 210 ff2007
290. See, eg, Application No 2346/02, Pretty v UK ECHR('The very essence of the Convention is respect for human dignity and human freedom')2002
291. See the case-law mentioned in n 219 supra; see also Application Nos 52562/99, 52620/99, Sørensen and Rasmussen v Denmark ECHR. Interestingly, the court has consistently allowed the states a wide margin of appreciation in cases concerning the organisation of their electoral systems. See in particular Application No 9267/81, Mathieu-Mohin and Clerfayt v Belgium Series A No 113, paras 52 and 542006
292. see also Application No 24839/94, Bowman v UK ECHR -I, paras42-431998
293. Application No 74025/01, Hirst v UK (No 2) ECHR IX, para 612005
294. Application No 10226/03, Yumak and Sadak v Turkey (unreported) 30 January para 612007
295. Application No 19392/92, United Communist Party of Turkey v Turkey ECHR I, para 571998
296. see also Application No 41340/98, Refah Partisi and Others v Turkey ECHR 2003-II, para 86. See also Marks, op cit n 207 supra, at212-2132003
297. For classic examples see Application No 6538/74, Sunday Times v UK Series A No 30 and Application No 13585/88, Observer and Guardian v UK Series A No 216, para 59. More recent examples are Application No 22678/93, Incal v Turkey ECHR 1998-IV para 461998
298. Application No 26958/95, Jerusalem v Austria ECHR 2001-II, para 36; Application No 33629/06, Vajnai v Hungary (unreported) 8 July 2008, para 512008
299. Application No 37374/05, Társágág A Szabadságjogokért v Hungary (unreported) 14 April para 262008
300. Application No 19392/92, United Communist Party of Turkey v Turkey ECHR 1998-I, para 57; see also Application No 41340/98, Refah Partisi and Others v Turkey ECHR 2003-II, para 862003
301. Application No 74989/01, Ouranio Toxo and Others v Greece ECHR 2005-X, para 36; Application No 35082/04, Makhmudov v Russia (unreported) 26 July para 63. See also H. Fenwick, 'The Right to Protest, the Human Rights Act and the Margin of Appreciation', (1999) 62 Modern Law Review 491, at 4922007
302. Application No 59320/00, Von Hannover v Germany ECHR 2004-VI, paras 65-66. See also Application Nos 66910/02 and 71612/01, Société Prisma Presse v France (unreported) 1 July 2003 (decision) and, more recently, Application No 12268/03, Hachette Filipacchi Associés ('Ici Paris') v France (unreported) 23 July para 402009
303. Application No 10572/83, markt intern Verlag GmbH and Klaus Beermann v Germany Series A No 165, para 33; Application No 38743/97, Demuth v Switzerland ECHR2002
304. Application No 44179/98, Murphy v Ireland ECHR 2003-IX, para 67. For examples of intensified review of restrictions of commercial speech in a political context, see Application No 25181/94, Hertel v Switzerland ECHR 1998-VI, para 47; Application No 24699/94, VgT Verein gegen Tierfabriken v Switzerland ECHR 2001-VI, paras 69-72. See elaborately on this M. Hertig Randall, 'Commercial Speech under the European Convention on Human Rights: Subordinate or Equal?', (2006) 6 Human Rights Law Review 53, at 74 ff2006
305. J.H. GerardsFundamental Rights and Other Interests-Should it Really Make a Difference?,' in E. Brems (ed), Conflicts between Fundamental Rights (Intersentia 655, at 659 ff2008
306. See in particular Application No 7525/76, Dudgeon v UK Series A No 45, para 52; Application Nos 33985/96, 33986/96, Smith and Grady v UK ECHR 1999-VI, para 891999
307. Application Nos 42758/98 and 45558/99, KA and AD Belgium (unreported) 17 February2005
308. Application No 29002/06, Schlumpf v Switzerland (unreported) 8 Januarypara 1042009
309. Application No 58757/00, Jäggi v Switzerland ECHR 2006-X, para 37
310. Such core rights may still be of very different sorts, varying from the prohibition on unwarranted disclosure of medical information (Application No 22009/93, Z v Finland ECHR 1997-I, paras 95-96) to the right to live in one's own house (Application No 9063/80, Gillow v UK Series A No 109, para 55
311. There are some examples of cases in which the doctrine is not mentioned at all (Application No 31675/04, Codarcea v Romania (unreported) 2 June2009
312. Application No 36936/05, Szuluk v UK (unreported) 2 June 2009). The reasons for this are not clear2009
313. M.R. HutchinsonThe Margin of Appreciation Doctrine in the European Court of Human Rights 48 International and Comparative Law Quarterly 6411999
314. This situation occurred in Application No 21132/05, TV Vest AS & Rogaland Pensjonistparti v Norway (unreported) 11 December 2008. In other cases, the court just left 'a certain margin of appreciation'. Although it did not make particularly clear what this means, it can be imagined that this indicates some form of heightened scrutiny; see, eg, Application No 13470/87, Otto-Preminger-Institut v Austria Series A No 295-A, para 50; Application No 69698/01, Stoll v Switzerland ECHR XIV, paras106-1072007
315. For examples of this, see Application No 2346/02, Pretty v UK ECHR 2002-III; Application No 52562/99, 52620/99, Sørensen and Rasmussen v Denmark (unreported) 11 January 2006, para 58 (strict scrutiny because of the importance of the right at stake, regardless of the lack of consensus and the better placed argument
316. Application No 54934/00, Weber and Seravia v Germany (unreported) 29 June 2006, para 106 ('fairly wide margin of appreciation' in a case on secret surveillance in the interest of national security); Application No 15948/03, Soulas and Others v France (unreported) 10 July 2008, para 38 (in which the ECtHR finally settled on an intermediate level of review ('une marge d'appréciation assez large2006
317. Application No 2346/02, Pretty v UK ECHR 2002-III, para 71, in which the court mentioned that, even though the case concerned a very important right, there were reasons to adopt a different approach. It did not, however, explain what these reasons were and how large the resulting margin of appreciation should be. Even some of the judges of the ECtHR have shown themselves critical about this aspect of the application of the doctrine. For example, in the case of Application No 34438/04, Egeland and Hanseid v Norway (unreported) 16 April 2009, dissenting Judge Malinverni stated that it is essential that the case-law of the court establish clear, objective and specific criteria that make it possible to determine in which scenarios the court must show self-restraint (dissenting opinion Judge Malinverni, para 4). Vice-President of the Court Rozakis in his dissenting opinion to the case criticised the majority for having applied the doctrine with an unwarranted level of automaticity, stating that '[o]ne can really wonder, when reading the judgment, what is really left to the margin of appreciation invoked by the Court, and how different the judgment would have been if no reference to the concept had been made' (dissenting opinion Judge Rozakis, para2002
318. An important example is the case of Application No 36022/97, Hatton v United Kingdom ECHR 2003-VIII, a case about sleep disturbance caused by night flights at Heathrow Airport. Although a large part of the judgment was devoted to identifying the relevant intensity-determining factors, the court did not reach a conclusive judgment on the issue (compare paras 101 and 129). For similar examples, see Application No 2346/02, Pretty v UK ECHR 2002-III; Application No 23960/02, Zeman v Austria (unreported) 29 June 2006, para 33; Application No 19009/04, McCann v UK (unreported) 13 May 2008; Application No 36919/02, Armoniène v Lithuania (unreported) 25 November 2008, paras 38 ff
319. In particular Ely, op cit n 37 supra; see also J. Waldron, 'The Core of the Case Against Judicial Review', (2006) 115 Yale Law Journal 1346, at 1386 ff
320. Young, op cit n 35 supra, at 566
321. see also Rivers, op cit n 47 supra, at 199
322. Waldron, ibid, at 1386-1387
323. Tushnet, op cit n 41 supra, at 31
324. Waldron, ibid, at 1361-1362 and 1388.
325. Young, op cit n 35 supra, at 570.
326. For a somewhat comparable approach, see Young, op cit n 35 supra, at 564