Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level

Abstract

This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to say, the response of national-level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.