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10.1515 - Icl 2021 0009
10.1515 - Icl 2021 0009
10.1515 - Icl 2021 0009
Carolina A Chagas*
Balancing Competences and the Margin of
Appreciation: Structuring Deference at the
ECtHR
https://doi.org/10.1515/icl-2021-0009
Published online February 25, 2022
1 Introduction
The margin of appreciation (or the margin) is an important argumentative
framework employed by the European Court of Human Rights (ECtHR or the Court).
Through its application, the Court may establish a balanced relationship with the
member states.1 This is why the margin is one of the main sources for the ECtHR’s
exercise of deference. The connection between the margin of appreciation and the
exercise of deference by the ECtHR is well-established.2 The source of this
connection is the subsidiary role of the Court. There is a link between the principle
of subsidiarity and the margin of appreciation, which derives from the idea that,
since national authorities would be better placed to deal with some human rights
issues, the Court should sometimes grant them a margin to provide their own
solutions to protect those rights.3
The ECtHR usually applies the margin of appreciation when it exercises
deference because the margin is the primary way with which the court might
determine the intensity of its review; ie, the Court might provide wide or narrow
leeway when assessing the compatibility of the decisions of member states to the
European Convention (ECHR).4 I understand judicial deference, then, as the
respect given to the decisions of the domestic authorities,5 an expression of light
intensity of review.
The ECtHR’s broad use of the margin of appreciation has motivated different
studies on this instrument and its multiple uses. Some of these studies have
pointed out that the margin has been applied in different ways, lacking
consistency.6 A reason for the variable application of the margin might be the
absence of a clear methodology to its exercise, which produces negative conse-
quences. For instance, the inconsistent application conflicts with legal certainty
1 See, eg, Eva Brems, ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court
of Human Rights’ (1996) 56 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 240,
294; Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the Euro-
pean Court of Human Rights’ (2018) 18(3) Human Rights Law Review 495, 497.
2 See, eg, Andrew Legg, The margin of appreciation in international human rights law: Deference
and proportionality (Oxford University Press 2012); Johannes H Fahner, Judicial Deference in In-
ternational Courts: A comparative analysis (Hart Publishing 2020) Chapter 2.
3 See Gerards (n 1) 4; Andreas Follesdal, ‘Exporting the margin of appreciation: Lessons for the
Inter-American Court of Human Rights’ (2017) 15(2) International Journal of Constitutional Law
359, 363; George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford J Legal
Studies 705, 721; Legg (n 2) 61–62.
4 On the use of a narrow or wide margin of appreciation, see, eg, Gerards (n 1) 499–500; Janneke
Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17(1) European Law
Journal 80, 101.
5 See Fahner (n 2) 5.
6 See, eg, Gerards (n 1) 500; Oddný M Arnardóttir, ‘Rethinking the Two Margins of Appreciation’
(2016) 12(01) European Constitutional Law Review 27, 307.
Balancing Competences and the Margin of Appreciation 3
and prevents the Court from stating clearly the standards of review being applied in
its decisions.7
A possible solution to deal with the shortcomings of the margin’s applicability
is to add a coherent reasoning method to its application. This suggestion would
not only make the choices for a deferential approach more straightforward but
would also enhance the legitimacy of the ECtHR, since ‘questions of legitimacy
arguably relate not just to what is decided, but also to the question of who should
decide and why.’8 Clear justification and predictability are necessary qualities in a
rule of law.9 When judges follow a distinct methodology for applying deference,
they have to demonstrate their reasons precisely, which increases the transparency
of their actions and promotes a ‘culture of justification.’10 Consequently, the
employment of a distinct methodology to explicitly justify the intensity of
the courts’ review and a possible deferential practice is evidently beneficial to the
Court and to the rule of law in general.
Notwithstanding all the criticisms regarding its application, the margin of
appreciation is still an important instrument worth applying. Courts rarely have
such a specific framework to decide upon the intensity of their review. Usually,
they place a stronger focus on the way they can express deference than on
justifying their choice of the intensity of scrutiny.11 To put an end to its
inconsistent application and the legitimacy issues it may arise, I suggest in
this paper a better way to determine the margin of appreciation. Courts
might have different approaches for determining the intensity of their review.
The margin could be the straightforward way with which the ECtHR deter-
mines the intensity of its review. Being deference the expression of light in-
tensity of review, to properly know when to act deferentially demands a
clear procedure to determine the intensity of review. Deference should be seen,
thus, as a consequence of the application of the margin (and not something
prior to it).
12 On Balancing as part of the principle of proportionality, see, eg, Robert Alexy, ‘Balancing,
constitutional review, and representation’ (2005) 3(4) International Journal of Constitutional
Law 572. On the broad application of proportionality world-wide, see, eg, Alec Stone
Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47
Colum J Transnat’l L 72. I would also like to highlight here that the adjudication of human
rights sets the ECtHR in close relation to constitutional courts, though they are not the same.
As Fahner explains, ‘the review exercised by the human rights courts concerns the legitimacy
of state conduct in a broad, constitutional sense, which sets them apart from other interna-
tional adjudicators,’ while, at the same time, they have to observe the principle of subsidiarity.
Their role is, thus, complementary to domestic judicial review, ‘preventing domestic ex-
cesses of power that would jeopardise the constitutional legitimacy of state power’ – Fahner
(n 2) 208.
13 See, eg, Fahner (n 2) 45–47; Gerards (n 4) 106.
Balancing Competences and the Margin of Appreciation 5
2.1.1 Function
Until now, the ECtHR has not clearly manifested the main function of the margin of
appreciation. Consequently, it is not unusual to see it being applied not only as ‘an
14 See, eg, Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4) 106;
Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of
Human Rights’ (n 1) 500; Arnardóttir (n 6) 37; Fahner (n 2) 36.
15 See Gerards (n 4) 114; Follesdal (n 3) 362.
16 Erin F Delaney, ‘Analyzing Avoidance: Judicial Strategy in Comparative Perspective’ (2016)
66(1) Duke Law Journal 1, 62.
17 For some of those arguments, see, eg, Legg (n 2) Chapter 3.
18 According to Gerards, these are the three main aspects of the Court’s application that
create a ‘gap between the normative ideal and the Court’s practice.’ See Gerards (n 1) 500.
6 C A Chagas
indicator for the amount of deference the Court will pay to the national authorities,’
but also, for instance, as part of the proportionality test.19
This uncertainty has led some scholars to proclaim that the margin has a dual
nature. Letsas refers to the substantive and the structural concepts of the margin of
appreciation. According to him, the substantive concept ‘addresses the relation
between fundamental freedoms and collective goals, under an ideal theory of
political morality.’20 Contrastingly, the structural concept is used to balance the
power of the Court against the power held by the national authorities.21 Arnardóttir
has taken a similar approach, proposing a dual justification to the margin of
appreciation: a functional one and a normative one. The former would allow for a
‘systemic distribution of competences between decision making bodies,’ while the
latter would allow ‘pluralism and flexibility in the interpretation and application of
rights.’22
The consistency and clarity of the margin of appreciation can improve if its
function would become singular. I believe it should be solely related to assigning
the proper intensity of review to the case. In other words, it should assist the Court
on whether to exercise deference or not in a case, depending on the intensity of
review. The margin of appreciation should only be related to deference purposes
and not the purposes of settling the merits of the case. In fact, a closer examination
of Letsas’ theory would indicate that he believes the structural feature of the
margin predominates to some extent over the substantive one. He states that the
substantive concept of the margin cannot really settle the question of interference
with rights, making the ‘[r]eferences to the doctrine in particular judgments (…)
either superfluous or question begging.’23 At the same time, the structural concept
is seen as a due exercise of deference, in compliance with the principle of
subsidiarity.24
2.1.2 Scope
The second criticism related to the exercise of the margin of appreciation is the lack
of a uniform approach regarding how it is applied. The margin has been widely
applied as a merely rhetorical tool.25 It is not uncommon for the Court to admit the
existence of ‘a certain margin of appreciation’ for the States, but not to elaborate
further on it, or to only mention the margin at the end of its reasoning.26 Moreover,
it is not very clear when the ECtHR assigns a narrow or a wide margin, and it seldom
provides a clear justification for doing so.27 According to Brems, ‘[v]ery often (…)
the reference to the margin of appreciation is extremely short, using standard
expressions such as “notwithstanding the state’s margin of appreciation” or
“having regard to the domestic margin of appreciation.”’28
It is not the unclear scope alone (whether narrow or wide) that is a problem.
Determining how this scope is achieved also presents difficulties. Even though
some constant factors are being applied to determine the margin of appreciation,
they are not applied consistently.29 The Court frequently refers to only one of the
many relevant factors or refrains from explaining why factors that point in a
specific direction have trumped the ones pointing in another direction.30 Thus, it is
unsure how these factors work together and how the Court should proceed when
they are pulling in different directions. For a better deferential practice, not only
the decision for a scope but how the Court arrived at it should be more transparent.
Lastly, the ECtHR’s application of the margin of appreciation has also been criti-
cized for the lack of clarity regarding the consequences of the intensity of review
determined by the margin, ie, which standards of review are attached to each
depth of the margin. It is not uncommon for the Court to state the use of a wide
scope but end up undergoing a strict review, and vice-versa.31 This approach
renders it rather difficult for the Court’s decisions to be made with legal certainty
and predictability.
In general, courts have multiple options which they can use to assign light or
more strict scrutiny in a case. For instance, a light intensity of review could
culminate in courts conducting a purely procedural review. Or, they could make a
26 For some recent examples, see Evers v Germany App no 17895/14 (ECtHR, 28 May 2020), para
86; Pormes v The Netherlands App no 25402/14 (ECtHR, 28 July 2020), para 54; Doroz v Poland App
no 71205/11 (ECtHR, 29 October 2020), para 24; Makhmudova v Russia App no 61984/17 (ECtHR, 1
December 2020), para 62. For more examples, see Ibid 6–7.
27 See, eg, Balaskas v Greece App no 73087/17 (ECtHR, 5 November 2020), para 42; OOO Regnum v
Russia App no 22649/08 (ECtHR, 8 September 2020), para 59. For more examples, see Ibid 8; Brems
(n 1) 255.
28 Brems (n 1) 256.
29 Ibid 256; Gerards (n 4) 106.
30 See Gerards (n 1) 503.
31 For an example of citing a narrow scope and the application of semiprocedural review, see N S v
Croatia App no 36908/13 (ECtHR, 13 September 2020), para 94 et seqq. For other examples, see, eg,
Ibid 10–11; Gerards (n 4) 106.
8 C A Chagas
more lenient assessment of one of the steps in the proportionality test.32 In the case
of the ECtHR, no uniform approach has been taken to the outcomes attached to
the different intensities of review so far.33 On the one hand, the Court has
been consistent in applying a full proportionality test, and this approach can be
interpreted as an exercise of strong scrutiny.34 On the other hand, it is also true
that the Court has been applying different procedural approaches.35 However, the
correlation between these approaches and the margin’s scope is still unclear.36 The
fact that determining the scope in the first place is still uncertain might be one of
the reasons why the possible standards of review are also imprecise.
For a more in-depth analysis of the margin’s practice, I have chosen one specific
example: The Animal Defenders case.37 This case has been widely cited and
analyzed in the literature due to the ECtHR’s explicit formulation of a connection
between the margin of appreciation and the quality of the decision-making by the
national authority.38 However, the application of the margin is unclear, illustrating
32 See Leonie M Huijbers, Process-based fundamental rights review: Practice, concept, and theory
(Human rights research series volume 88, Intersentia 2019) 382 et seqq.
33 Janneke Gerards, ‘Procedural Review by the ECtHR: A Typology’ in Janneke Gerards and Eva
Brems (eds), Procedural review in European fundamental rights cases (Cambridge University Press
2017) 156.
34 See, eg, Oddný M Arnardóttir, ‘Organized Retreat? The Move from ‘Substantive’ to ‘Procedural’
Review in the ECtHR’s Case Law on the Margin of Appreciation’ (2015) 5(4) ESIL Conference Paper
Series 1, 4. For some examples of these cases see also Gerards (n 33) 151.
35 On the procedural approach at the ECtHR, see, eg, Oddný M Arnardóttir, ‘The Brighton
Aftermath and the Changing Role of the European Court of Human Rights’ (2018) 9(2) Journal of
International Dispute Settlement 223; Janneke Gerards and Eva Brems (eds), Procedural review in
European fundamental rights cases (Cambridge University Press 2017); Patricia Popelier and
Catherine Van de Heyning, ‘Subsidiarity Post-Brighton: Procedural Rationality as Answer?’ (2017)
30(1) Leiden Journal of International Law 5.
36 See, eg, Gerards (n 33).
37 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013).
38 See, eg, Patricia Popelier, ‘Procedural Rationality Review after Animal Defenders Interna-
tional: A Constructively Critical Approach’ (2019) 15(2) European Constitutional Law Review 272,
284; Patricia Popelier and Catherine Van de Heyning, ‘Procedural Rationality: Giving Teeth to the
Proportionality Analysis’ (2013) 9(2) European Constitutional Law Review 230; Popelier and Van de
Heyning; Tom Lewis, ‘Animal Defenders International v United Kingdom: Sensible Dialogue or a
Bad Case of Strasbourg Jitters?’ (2014) 77(3) The Modern Law Review 460; R Spano, ‘Universality or
Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14(3) Human Rights Law
Review 487, 498; Oddný M Arnardóttir, ‘The “procedural turn” under the European Convention on
Balancing Competences and the Margin of Appreciation 9
Human Rights and presumptions of Convention compliance’ (2017) 15(1) International Journal of
Constitutional Law 9; Arnardóttir (n 34); Gerards (n 33).
39 See Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April
2013), ‘The Facts’ section.
40 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013),
para 104.
41 Ibid para 102.
42 Ibid para 102.
43 Ibid para 103.
44 In the Court’s words, ‘whether the reasons adduced to justify the prohibition were both
“relevant” and “sufficient” and thus whether the interference corresponded to a “pressing social
need” and was proportionate to the legitimate aim pursued.’ – Ibid para 105.
10 C A Chagas
The first of these reasons was the quality of the national deliberation of the
issue at stake. The Court not only praised the extensive deliberation and its
quality,45 but also asserted that ‘[t]he quality of the parliamentary and judicial
review of the necessity of the measure is of particular importance in this respect,
including to the operation of the relevant margin of appreciation.’46 This para-
doxical approach was also identified in one of the dissenting opinions of the case,
where the judges stated that ‘[t]he fact that a general measure was enacted in a fair
and careful manner by Parliament does not alter the duty incumbent upon the
Court to apply the established standards that serve for the protection of funda-
mental human rights,’47 in accordance with the narrow margin of appreciation.
The second reason was a ‘better-placed’ argument, which was applied to
‘assess the particular difficulties in safeguarding the democratic order in their
State,’ whereby the Court decided that ‘[t]he State must therefore be accorded some
discretion as regards this country-specific and complex assessment which is of
central relevance to the legislative choices at issue in the present case.’48 The third
and last reason given was the lack of a European consensus between the con-
tracting States regarding how to regulate paid political advertising in broad-
casting, which could speak for a ‘wider margin of appreciation than that normally
afforded to restrictions on expression on matters of public interest.’49
Clearly, these three reasons contributed to the Court’s assessment of the in-
tensity of review since it was not ultimately based on the narrow margin defined
previously.50 Therefore, they should have been addressed during the analysis of
the margin of appreciation in the case.
As seen, the reasoning of the ECtHR while applying the margin of appreciation
lacked precision in explaining the use of all factors and how they influence the
intensity of the Court’s review (eg, it was not clear if they were reasons explaining
the margin or the merits of the case). The impact of such inconsistencies is
perceived even more from the clear mismatch between granting a narrow margin
and not thoroughly analyzing the merits by being deferential to the national
authorities’ interpretations.
When courts decide whether to exercise deference or not, they assess the intensity
of their review of the case. To act deferentially means exercising a light intensity of
review. Deference is usually measured against the decision of another authority.
This means that reaching a balance between both authorities in question,
51 Art 32 ECHR.
52 Art 33 and 34 ECHR.
53 See further the idea of complementarity of competences in human rights law in Samantha
Besson, ‘Subsidiarity in International Human Rights Law: What is Subsidiary about Human
Rights?’ (2016) 61(1) The American Journal of Jurisprudence 69.
12 C A Chagas
54 As claimed by Fahner, ‘[t]he proper balance between the need for meaningful review on the one
hand and an acknowledgment of the expertise and legitimacy of the original decision-maker on
the other is particularly delicate.’ – Fahner (n 2) 16. See, also, 8.
55 See, eg, T R S Allan, ‘Deference, Defiance, and Doctrine: Defining the Limits of Judicial Review’
(2010) 60 University of Toronto Law Journal 41–59, 41; Aileen Kavanagh, ‘Judicial Restraint in the
Pursuit of Justice’ (2010) 60(1) University of Toronto Law Journal 23, 30; Young (n 10) 554.
56 Gerards (n 1) 497.
57 Matthias Klatt, Die praktische Konkordanz von Kompetenzen: Entwickelt anhand der Juris-
diktionskonflikte im europäischen Grundrechtsschutz (Mohr Siebeck 2014), 65.
58 Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) Cam Law J 174,
203.
59 See Klatt (n 57) 158 et seqq.
60 For competence as formal principles, see, eg, Robert Alexy, A Theory of Constitutional Rights
(Oxford University Press 2010), 58 and 424; Klatt (n 57) 158 et seqq.
61 Matthias Klatt, ‘Judicial review and institutional balance’ (2019) Revus, 3.
Balancing Competences and the Margin of Appreciation 13
‘The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must
be the importance of satisfying the other.’67
Deference can be seen, thus, as the product of balancing. The result of a balancing
exercise is one competence having a preference on top of another without
annulling it. Whenever the competence of a court loses preference to the compe-
tence of another authority, the court should exercise a light intensity of review,
which can be translated into judicial deference.
62 Robert Alexy, ‘Formal principles: Some replies to critics’ (2014) 12(3) International Journal of
Constitutional Law 511, 516.
63 Matthias Klatt, ‘Balancing competences: How institutional cosmopolitanism can manage
jurisdictional conflicts’ (2015) 4(02) Glob Con 195, 211.
64 See Alexy (n 60) 47–48.
65 Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4) 88.
66 Klatt (n 63) 211.
67 Alexy (n 60) 102. See also Klatt (n 11) 366.
14 C A Chagas
68 See, eg, Alexy (n 62) 515 and Martin Borowski, ‘Formelle Prinzipien und Gewichtsformel’ in
Matthias Klatt (ed), Prinzipientheorie und Theorie der Abwägung (Mohr Siebeck 2013) 185 et seqq.
69 For an overview on all the theories involving formal balancing, see Paula Gorzoni, Der ‘margin
of appreciation’ beim Europäischen Gerichtshof für Menschenrechte: Eine prinzipientheoretische
Rekonstruktion (Kieler Rechtswissenschaftliche Abhandlungen (NF), Band 71, 1st edn, Nomos
2019), 2. Teil, III. Spielräume und formelle Prinzipien.
70 See Klatt, Die praktische Konkordanz von Kompetenzen (n 57); Klatt, ‘Judicial review and
institutional balance’ (n 61); and Klatt, ‘Judicial review and institutional balance’ (n 61).
71 For Klatt’s account of formal principles, see mainly Klatt, Die praktische Konkordanz von
Kompetenzen (n 57); Klatt, ‘Balancing competences’ (n 63); and Klatt, ‘Judicial review and insti-
tutional balance’ (n 61).
72 For an example of the application of the combination model at the ECtHR’s jurisdiction, see
Gorzoni (n 69).
Balancing Competences and the Margin of Appreciation 15
‘The first step consists in establishing the degree of non-satisfaction to a first competence. In
the second step, the importance of satisfying the competing competence is established.
Finally, in the third step it is established whether the importance of satisfying the latter
competence justifies the non-satisfaction of the former.’74
As in the case of balancing material principles, Klatt affirms that a triadic scale
should also be employed to assign a concrete weight to a competence, ie, the
weight of a competence in a given case could be described as light, moderate, or
serious,75 depending on the circumstances. Therefore, ‘depending on the values
assigned to the conflicting competences, the third step of balancing will then
establish a preference for either of the two competences.’76 By taking the ECtHR
example, we have that whenever the competence of the Court has preference to the
competence of a national authority, it means that the intensity of review applied in
the case should be towards a stronger review, thus being against a deferential
approach. In contrast, when the competence of the national authority has priority,
a lighter intensity should be exercised, moving the Court’s control towards a
deferential approach.77
If we consider the argumentative premises of material balancing, the formal
balancing method should also be internally and externally justified.78 In the
73 See, eg, Alexy (n 62); Borowski (n 68); Martin Borowski, ‘Alexys drittes Modell formeller
Prinzipien’ in Martin Borowski, Stanley L Paulson and Jan-Reinard Sieckmann (eds), Rechtsphi-
losophie und Grundrechtstheorie: Robert Alexys System (1st edn, Mohr Siebeck 2017).
74 Klatt, ‘Balancing competences’ (n 63) 213; also in Klatt, ‘Positive rights’ (n 11) 366.
75 For the Weight Formula, the values would be respectively 1, 2, 4. For more details on the Weight
Formula, see Alexy (n 60) 408 et seqq.
76 Klatt, ‘Positive rights’ (n 11) 366.
77 It is also possible that the competences have the same weight in a given case (ie, a balancing
stalemate), which would characterize judicial discretion and authorize the court to choose the
scrutiny it would prefer to follow. On more about balancing and structural discretion, see, eg,
Alexy (n 60) 394; Klatt, Die praktische Konkordanz von Kompetenzen (n 57) 263.
78 According to Alexy’s theory of legal argumentation, legal discourse is concerned about the
justification of legal judgments in two aspects: internal and external. Internal justification is
concerned with the question of whether an opinion follows logically from the premisses adduced
as justifying it. The correctness of these premisses is the subject-matter of external justification.
16 C A Chagas
Robert Alexy, A Theory of Legal Argumentation: The theory of rational discourse as theory of legal
justification (Oxford University Press 2010) 221 et seqq.
79 Klatt, ‘Balancing competences’ (n 63) 213–214.
80 Ibid 214.
81 See Ibid 217; Alexy (n 78) 250.
82 See Klatt, Die praktische Konkordanz von Kompetenzen (n 57) 223.
Balancing Competences and the Margin of Appreciation 17
By applying the formal balancing method, the ECtHR explicitly demonstrates how
the margin of appreciation can be used to define the intensity of the Court’s review,
advancing a more straightforward function of the margin. The Court should
establish the intensity of review through balancing the competing competences of
the authorities at play (in this scenario, these are the competences of the ECtHR
and of another national authority). Deference is seen then as a possible result of
this balancing, ie, whenever the intensity of review is towards a lighter one. As we
have seen above, this happens whenever the competence of the Court does not
prevail.
At the same time, the formal balancing method applied here, even though it
adheres to the separation thesis,83 also has the potential to impact the substantive
assessment of the case, which would explain the connection of the margin with the
merits of the case. The result of the formal balancing should be seen in the way the
merits will be. For instance, a light intensity of review will demand a deferential
approach, which can be translated into more leeway on the interpretation of the
steps of the proportionality test, such as suitability and necessity. Therefore, the
fact that the margin of appreciation should have only one specific function, which
is related to determining the intensity of review, does not mean that it will not
influence the merits of the case. In other words, the margin’s main function should
not be to impose the proper balance between the rights and interests at stake but to
influence such an assessment by determining the proper intensity of review for the
case.
The formal balancing method brings clarity to the margin of appreciation
function when supplying a structured methodology to determine the intensity of
review. Under these circumstances, the Court’s reasoning can be improved when
expressly justifying what it is doing in each step, ie, when assessing its intensity of
review and when deciding the merits.
Formal balancing could also be advantageous here to properly define the
margin’s scope. The balancing method explains that the scope should reflect the
balance between the competences at stake and not among different factors.84 For
instance, the less it is important to preserve the competence of the Court, the lighter
the intensity of review will be. On the other hand, the more important it is to
preserve the competence of the Court, the stronger the intensity of review will be.
Therefore, defining the proper intensity will depend on how much weaker or
85 See, eg, Gerards, ‘Procedural Review by the ECtHR’ (n 33) 159; and Arnardóttir (n 38) 13–14.
Balancing Competences and the Margin of Appreciation 19
is interpreted as the result of a wide margin. Looking through the balancing lens,
one could see that the quality of the decision-making (a procedural aspect) could
be considered a factor in the balancing exercise, while the balancing result that
produces a wide margin could result in a (semi-) procedural review.
Going back to the Animal Defenders case, we will see the impact of these
improvements in a case. A structured methodology, such as formal balancing,
would prevent the non-systematized application of factors and, thus, better justify
the application of a certain level of scrutiny in the case. If we apply the formal
balancing methodology, it is necessary to analyze which competence has a higher
preference in the case (ie, the competence of the ECtHR or the UK Parliament). As
seen above, all relevant factors must be taken into consideration to assess the
weight of each competence.86
In the Animal Defenders case, the Court based its decision for a narrow
margin basically on one single factor, ie, the importance of the human right at
stake (in the Court’s words, ‘the type of expression at issue and the exercise by the
press of its public watchdog role’). However, as depicted above, the Court ends up
using other elements in its reasoning (ie, subsidiarity, quality of the decision-
making, and consensus), which influenced a final standard of review that did not
match the pre-defined narrow margin. In the end, to determine whether the
interference was ‘necessary in a democratic society,’87 the Court acknowledged
the references made by the national authorities (both from the enactment of the
relevant legislation and during the national courts’ proceedings) to its case law,88
even stating that it ‘attaches considerable weight to these exacting and pertinent
reviews, by both parliamentary and judicial bodies.’89 The Court, however,
should have gone one step forward at this stage and also checked whether the
main standards for these types of cases were met by those authorities. By failing
to provide a deeper analysis at this point, the Court already granted a high level of
86 See (n 78). For an overview on the literature that address some of the main factors at the ECtHR,
see, eg, Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4); Popelier
(n 38); Gerards and Brems (n 35); Klatt, Die praktische Konkordanz von Kompetenzen (n 57) 224
et seqq.
87 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013),
para 78.
88 See Ibid paras 114–115.
89 See Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April
2013), para 116.
20 C A Chagas
deference to the national authorities without this having been justified by any
intensity of review analysis.
To analyze how this decision would be like if applied the formal balancing
method, I will assess each applied factor and how they influence the competences
at stake (in this case, the competence of the UK parliament and the competence of
the ECtHR).
The first factor was the importance of the human right at stake.90 This factor
addresses the relevance of safeguarding the freedom of expression and its exercise.
Due to the importance of this right to democracy, one could notice that this factor
provides a heavier weight to the competence of the Court, as an important insti-
tution to review the decisions from other authorities (result: serious weight).
Nonetheless, it does not negatively impact the competence of the domestic
parliament, also an essential institution in a democracy (result: moderate weight).
The second factor was the subsidiarity factor, which was approached when the
Court explained its ‘better-placed’ argument. In the case, the Court defended that
the national authorities were better placed to define how to safeguard democracy
in its own State. For that reason, this particular factor indicates that more weight
was assigned to the competence of the UK Parliament (result: serious weight) than
the Court (result: light weight)
The quality of the decision-making was the third factor addressed by the Court,
which was done emphatically. This factor was assessed when the Court high-
lighted the quality of the deliberation to enact the statute in question, which even
took into consideration its case law. Therefore, this factor also indicates that more
weight was assigned to the competence of the UK Parliament (result: serious
weight). However, it does not diminish the competence of the Court (result:
moderate weight).
Lastly, the consensus factor91 was also explained as a factor providing a strong
weight to the competence of the UK Parliament (result: serious weight) but not to
the Court (result: light weight). The Court pointed out the absence of a European
90 Beyond being a frequent factor applied by the Court, the importance of the right is also
normatively relevant. With this factor, the Court can also justify and develop its theory of human
rights, regarding, for example, which limitation to a right should be strongly justified and why.
See, eg, on the typology of the Convention Rights Janneke Gerards, General principles of the
European Convention on Human Rights law (Cambridge University Press 2019) 19 et seqq.
91 I am aware that the use of consensus as a factor has been largely debatable in the literature.
However, I decided to preserve the Court’s reasoning while reconstructing the arguments of the
case. For some critical views on the use of consensus by the ECtHR, see, eg, Follesdal (n 3); Shai
Dothan, ‘Judicial Deference Allows European Consensus to Emerge’ (2018) 18(2) Chicago Journal of
International Law 393.
Balancing Competences and the Margin of Appreciation 21
92 In this simple version, Wc,p is the concrete weight of the formal principle representing the
competence of the ECtHR (Cc) in relation to the formal principle representing the competence of
the domestic parliament (Cp).
93 See (n 71).
94 Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano, para 3.
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also highlights precisely the need to justify any deferential approach that the Court
might take.
95 See, eg, Brems (n 1); Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n
4) 106–107.
96 See Brems (n 1) 313; Dothan (n 91) 400.
97 See, eg, Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European
Court of Human Rights’ (n 1) 499–500; Gerards, ‘Pluralism, Deference and the Margin of Appre-
ciation Doctrine’ (n 4) 101; Janneke Gerards, ‘Intensity of Judicial Review in Equal Treatment Cases’
(2004) 51(2) Netherlands International Law Review 135, 140.
98 See Brems (n 1); Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4);
Gerards, ‘Intensity of Judicial Review in Equal Treatment Cases’ (n 97); Follesdal (n 3); Legg (n 2)
58.
99 Fahner (n 2) 40.
Balancing Competences and the Margin of Appreciation 23
the right in question, the existence of uncertainty related to the subject, and whether
one authority is better placed to solve the matter than another.100
The second common feature of the margin of appreciation is that the Court
needs to assess the case in question in order to grant the correct margin to the
national authorities. Ergo, case dependency is also an important feature of the
margin of appreciation. The relevant factors for determining the width of
the margin are analyzed through the lens of a specific case.101 Even when not
talking explicitly about factors, a margin of appreciation is usually granted to
States not because of which State it is but because the Court believes that the
specificities of the case indicate such choice.102 In sum, the ECtHR has two main
elements in the exercise of the margin of appreciation: different intensities with the
application of different factors and case dependency.
Remarkable here is how these characteristics are also very similar to those of
the balancing method. Balancing is also based on the beforementioned features of
case-dependency and the matter of degree (flexibility), making it a perfect method
to structure the exercise of deference without replacing the main elements of
the margin. The balancing method is applied to find a solution for when legal
principles compete, ie, to ‘optimize’ the requirements of the principles at play.103
According to Alexy, principles are ‘characterized by the fact that they can be
satisfied to varying degrees, and that the appropriate degree of satisfaction de-
pends not only on what is factually possible but also on what is legally possible.’104
Moreover, ‘principles have different weights in different cases and (…) the more
important principle on the facts of the case takes precedence.’105 Therefore, it is
clear that both the nature of legal principles and the way balancing should be
applied to solve a situation of competing principles in a case include the notions,
respectively, of a matter of degree and case dependency.
Additionally, by performing balancing, none of the competences are
completely pushed away, which could be easily related to the function of
the margin of appreciation. In Brems’ description, the margin of appreciation
‘provides an elegant solution for the tension existing in a supranational judicial
system between national and European legal rules, so that it is not necessary
to completely subordinate one to the other.’106 A competence will prevail for a
100 See, eg, Brems (n 1) 256 et seqq; Gerards, ‘Pluralism, Deference and the Margin of Appreci-
ation Doctrine’ (n 4) 109 et seqq.
101 Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4) 109 et seqq.
102 See, eg, Brems (n 1) 241.
103 Alexy (n 12) 573.
104 Alexy (n 60) 47–48.
105 Ibid 50.
106 Brems (n 1) 313.
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Surely, formal balancing is not a perfect method. Such a method could suffer
general criticisms coming both from theorists of principles theory and from
practitioners, who might think such a method could present extra work for the
Court. As much as it represents an interesting debate, this paper could not
comprehend a thorough analysis of the arguments against the applicability of
formal principles and of balancing per second.113 However, I would like to drop a
few words on the practical feasibility of formal balancing.
Overall, the formal balancing method should not be seen as an argumenta-
tive burden for the Court, as something too complex to be applied all the time.
First, applying formal balancing is not more complex than applying the
proportionality test (since balancing is only one part of it); and this latter is
applied constantly,114 proving that the Court already has experience with it.
Second, connecting the formal balancing method to the margin does not mean
that this method will always be applied. With time, the Court might develop rules
that allow it to deal with similar circumstances, and it will not need to redress
the intensity of review for the same type of cases.115 Consequently, I believe that
the advantages brought here, together with the clear improvements to the
application of the margin, make it a method worth employing for organizing the
deferential practices of the ECtHR.
6 Conclusion
I have demonstrated that applying the formal balancing method is an excellent
way to structure deference and provide a justified application of the margin of
appreciation in the ECtHR’s practice. With the clear structure of balancing, factors
are employed in a more organized manner, and the relationships behind the idea of
determining the intensity of review are explicitly justified. The structure of
balancing goes beyond clarifying the underneath aspects analyzed by the margin
(such as the competing competences in a subsidiary system). It also indicates more
precisely what needs to be justified by the Court in its decisions.
113 For an overall discussion on the advantages and disadvantages of the different models of
formal balancing, see, eg, Borowski (n 73); Gorzoni (n 69). On an overall critic to balancing, see, eg,
S Tsakyrakis, ‘Proportionality: An assault on human rights?’ (2009) 7(3) International Journal of
Constitutional Law 468; Francisco J Urbina Molfino, A critique of proportionality and balancing
(Cambridge University Press 2017).
114 See, eg, Janneke Gerards, ‘How to improve the necessity test of the European Court of Human
Rights’ (2013) 11(2) International Journal of Constitutional Law 466, 466–467; Stone Sweet and
Mathews (n 12) 145 et seqq.
115 See Alexy (n 60) 54; Klatt (n 57) 161.
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