Positive subsidiarity and its implications for the margin of appreciation doctrine
| Author | Eva Brems |
| Published date | 01 September 2019 |
| Date | 01 September 2019 |
| DOI | 10.1177/0924051919861798 |
| Subject Matter | Articles |
Article
Positive subsidiarity and its
implications for the margin
of appreciation doctrine
Eva Brems
Faculty of Law and Criminology, Ghent University, Belgium
Abstract
The article presents an argument in favour of a richer theory of subsidiarity in the European Court
of Human Rights context. In particular, the proposal is to include what is called a ‘positive’
dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political
of appreciation for the States Parties. There is however a complementary dimension in the sub-
sidiarity layout, which concerns the responsibility of national authorities to offer first-line pro-
tection of Convention rights. The article examines the role the European Court of Human Rights
can play in facilitating that first-line responsibility. The article explores what this means for the
margin of appreciation of national authorities.
Keywords
European Court of Human Rights, subsidiarity, margin of appreciation
Subsidiarity and the margin of appreciation
The doctrine of the margin of appreciation in the case law of the European Court of Human Rights
(‘ECtHR’ or ‘Court’) is linked to the principle of subsidiarity, establishing the subsidiary role of
that Court vis-`a-vis national authorities. Both the margin of appreciation doctrine and the sub-
sidiarity principle are jurisprudential constructs, developed in the case law of the ECtHR. Gerards
1
has pointed out that in the Handyside judgment,
2
which is widely seen as foundational to the
Corresponding author:
Eva Brems, Faculty of Law and Criminology, Ghent University, Universiteitstraat 4, 9000 Ghent, Belgium.
E-mail: eva.brems@ugent.be
1. Janneke Gerards, EVRM – Algemene Beginselen (Sdu Uitgevers 2011) 184-185.
2. Handyside v UK App no 5493/72 (ECtHR, 7 December 1976) para 48.
Netherlands Quarterly of Human Rights
2019, Vol. 37(3) 210–227
ªThe Author(s) 2019
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margin of appreciation doctrine, the Court has rooted that doctrine in two arguments, one of which
is the subsidiarity principle.
3
Subsidiarity and the ‘wide’ margin of appreciation
What is known as the ‘doctrine’ of the margin of appreciation – a number of rules of the game that
can be derived from the ECtHR case law – includes scenarios in which the margin is restricted as
well as scenarios in which it is broadened. For example, in the context of Article 10 of the
European Convention on Human Rights (‘ECHR’ or ‘Convention’), the Court holds that ‘a high
level of protection of freedom of expression, with the authorities thus having a particularly narrow
margin of appreciation, will normally be accorded where the remarks concern a matter of public
interest’.
4
Yet when the margin of appreciation is linked to the principle of subsidiarity – in ECtHR
case law as well as in policy documents and scholarly literature
5
– the reference is usually to an
argument in favour of the existence of a domestic margin of appreciation in general terms, and thus
in defence of a degree of deference on the side of the Strasbourg Court.
In the same vein, Protocol 15 to the ECHR aims to introduce a paragraph in the Convention’s
preamble that frames the margin of appreciation as an operational tool in line with the principle of
subsidiarity:
‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the
primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols
thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction
of the European Court of Human Rights established by this Convention’.
6
The explanatory report confirms the interpretation that the existence of a margin of appreciation
for national authorities is – among other rationales – an expression of the principle of subsidiarity.
The jurisprudence of the Court makes clear that the States Parties enjoy a margin of apprecia-
tion in how they apply and implement the Convention, depending on the circumstances of the case
and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the
safeguarding of human rights at national level and that national authorities are in principle better
placed than an international court to evaluate local needs and conditions.
7
The relationship between the margin of appreciation and the subsidiarity principle is not a one-
on-one matter. Indeed, the subsidiarity principle is one among several underlying, justificatory
principles or arguments for the margin of appreciation. As the above quote shows, the ‘better
placed’ argument is another of this kind.
8
At the same time, the margin of appreciation doctrine is
3. The other is the ‘better placed’ argument, holding that national authorities are generally better placed than the supra-
national Court to assess the need for rights restrictions in the concrete context, for this see Gerards (n 1) 185.
4. Morice v France App no 29369/10 (ECtHR, GC, 23 April 2015) para 125 (emphasis added).
5. Eg Oddny
´Mjo¨ll Arnard ´ottir, ‘Rethinking the Two Margins of Appreciation’, (2016) 12(1) European Constitutional Law
Review 27.
6. Protocol No 15 (2013) amending the Convention on the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights) (ECHR), Article 1 (emphasis added). At the time of writing, the Protocol has
not yet entered into force.
7. ibid, Explanatory Memorandum, para 9 (emphasis added).
8. See n 3. In addition, the literature has also explained the margin of appreciation doctrine as a frame for the exercise of
judicial restraint vis-`a-vis the legislative and/or executive powers, and as a tool to manage the interaction between
universality and diversity in human rights interpretation and implementation.
Brems 211
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