Margin of appreciation
Encyclopedia
Margin of Appreciation is a concept the European Court of Human Rights
has developed when considering whether a member state of the European Convention on Human Rights
has breached the convention. The margin of appreciation doctrine allows the court to take into effect the fact that the Convention will be interpreted differently in different member states. Judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question. Margin of Appreciation is similar in concept to, but should not be confused with Subsidiarity
.
The Doctrine was used for the first time in the case Handyside v. United Kingdom which concerned the publication of a book aimed at school children, a chapter of which discussed sexual behaviour in explicit terms. The ECHR were willing to allow a limitation of freedom of expression in the interests of the protection of public morals.
The European Union courts, which are the General Court (previously known as the Court of First Instance) and the European Court of Justice
, use French as the "language of the court." All decisions are drafted in French and then translated to the appropriate other EU languages. In a number of cases, the courts have had to decide the "marge d'appreciation" of the European Union executive, which is the European Commission
. In particular, the concept of "marge d'appreciation" has been used in competition cases. The Commission may bar large company mergers, or fine companies engaged in cartels or abuse of dominance. On occasion companies appeal the Commission decisions to the courts. Sometimes the court decisions have taken note of range of discretion of the Commission. The court has said that the Commission has some discretion—its "marge d'appreciation"—over deciding facts and making an economic analysis. The court has said the Commission can be reversed only if it makes a "manifest error of judgment."
In practice, it has sometimes used both these phrases as it has clipped the wings of the Commission. The best examples of this are three cases decided by the Court of First Instance (now known as the General Court) in 2002, the Airtours/First Choice case, the Tetra Laval-Sidel case, and the Schneider-Legrand case. The decisions, in which the Commission decisions were overturned, are available in French, English and other languages on the court's official website.
For more controversial topics, such as cases involving bioethics
or assisted reproduction, the Court recognises that to make a definitive stance for all contracting States would mean ignoring the social and cultural values which lie behind the decisions of national legislatures.
“Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy: the authorities' direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest… There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights.” - Dickson v. United Kingdom
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
has developed when considering whether a member state of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
has breached the convention. The margin of appreciation doctrine allows the court to take into effect the fact that the Convention will be interpreted differently in different member states. Judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question. Margin of Appreciation is similar in concept to, but should not be confused with Subsidiarity
Subsidiarity
Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which...
.
The Doctrine was used for the first time in the case Handyside v. United Kingdom which concerned the publication of a book aimed at school children, a chapter of which discussed sexual behaviour in explicit terms. The ECHR were willing to allow a limitation of freedom of expression in the interests of the protection of public morals.
Concept
Margin of appreciation is the word-for-word English translation of the French phrase "marge d'appreciation", a concept used in a number of courts in Europe, among them the European Court of Human Rights and the European Union courts in Luxembourg. It means, roughly, the range of discretion.The European Union courts, which are the General Court (previously known as the Court of First Instance) and the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
, use French as the "language of the court." All decisions are drafted in French and then translated to the appropriate other EU languages. In a number of cases, the courts have had to decide the "marge d'appreciation" of the European Union executive, which is the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
. In particular, the concept of "marge d'appreciation" has been used in competition cases. The Commission may bar large company mergers, or fine companies engaged in cartels or abuse of dominance. On occasion companies appeal the Commission decisions to the courts. Sometimes the court decisions have taken note of range of discretion of the Commission. The court has said that the Commission has some discretion—its "marge d'appreciation"—over deciding facts and making an economic analysis. The court has said the Commission can be reversed only if it makes a "manifest error of judgment."
In practice, it has sometimes used both these phrases as it has clipped the wings of the Commission. The best examples of this are three cases decided by the Court of First Instance (now known as the General Court) in 2002, the Airtours/First Choice case, the Tetra Laval-Sidel case, and the Schneider-Legrand case. The decisions, in which the Commission decisions were overturned, are available in French, English and other languages on the court's official website.
For more controversial topics, such as cases involving bioethics
Bioethics
Bioethics is the study of controversial ethics brought about by advances in biology and medicine. Bioethicists are concerned with the ethical questions that arise in the relationships among life sciences, biotechnology, medicine, politics, law, and philosophy....
or assisted reproduction, the Court recognises that to make a definitive stance for all contracting States would mean ignoring the social and cultural values which lie behind the decisions of national legislatures.
“Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy: the authorities' direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest… There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights.” - Dickson v. United Kingdom