Balancing Competences and the Margin of Appreciation: Structuring Deference at the ECtHR

Carolina A Chagas

doi:10.1515/icl-2021-0009

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Balancing Competences and the Margin of Appreciation: Structuring Deference at the ECtHR

Carolina A Chagas

Veröffentlicht/Copyright: 25. Februar 2022

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Aus der Zeitschrift ICL Journal Band 16 Heft 1

Abstract

The margin of appreciation is an important argumentative framework employed by the ECtHR. Through its application, the Court may establish a balanced relationship with the member states. This is why the margin is one of the main sources for the ECtHR’s exercise of deference. Deference happens when low intensity of review is applied – or a wide margin. Therefore, to properly know when to act deferentially demands a clear procedure to determine the intensity of review. However, the application of the margin still presents some weak points and lacks consistency. In this paper, I defend the possibility of applying formal balancing to provide a clearer structure for the exercise of the margin of appreciation and, thus, a way to improve deferential practices by the ECtHR. 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. Hence, the notion and structure of balancing competences organize the margin of appreciation in a way to free it from its main criticisms and fulfill the argumentative potential it has.

Keywords: balancing; conflict of competences; ECtHR; judicial deference; margin of appreciation

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 consequences. For instance, the inconsistent application conflicts with legal certainty 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 determines the intensity of its review. Being deference the expression of light intensity 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).

To structure the deferential practices at the ECtHR, I propose to merge the formal balancing method with the margin’s framework. Balancing as a method has been broadly applied by different jurisdictions, including the ECtHR, as part of the proportionality test to solve fundamental/human rights conflicts.^[12] However, this method can also be used to solve jurisdictional conflicts, as I will show. Here, I follow Alexy’s theory of balancing and the studies derived from it that culminated in the idea of ‘balancing competences.’ In sum, formal balancing can reconstruct the conflicts of competences behind the application of the margin and thus rationally structure the reasoning present in its application.

My approach in this paper is mainly a normative one. I present how the practice of the margin of appreciation could be improved once a structured method is added to it (ie, formal balancing). Therefore, the fact that, in practice, the ECtHR not always indicates the reasons why it is acting deferentially is of less concern here.^[13] A descriptive part involving the Court’s case law is also present, nonetheless, to illustrate the current inconsistencies in the margin’s practice and what could be improved. I start by introducing some of the main practical problems with the application of the margin of appreciation (2). Next, I describe how the formal balancing method can be used to determine the intensity of review by courts (3). Then, I demonstrate how the balancing method can improve the application of the margin of appreciation by addressing its main criticisms and applying it in a case (4). Lastly, I finish my argument by presenting the advantages of using formal balancing within the application of the margin (5).

2 The Margin of Appreciation: The Inconsistent Practice

The margin of appreciation has been characterized as an inconsistent instrument whose practice lacks uniformity.^[14] Notwithstanding criticisms towards this inconsistent practice, the margin of appreciation has been applied following certain recurrent features, guiding the ECtHR as it exercises deference (eg, by the use of factors that could guide the court to a narrow or wide margin),^[15] which is not as common in other courts. As described by Delaney, ‘[t]he ECtHR’s use of the margin of appreciation provides an insight into how candid avoidance works: the margin of appreciation is an open acknowledgment of the limits of judicial power.’^[16]

Although it might suffer other normative criticism against its nature,^[17] the margin follows basic rational components for its application that, if improved, could provide a clear framework for judicial deference in the ECtHR. In this regard, I take as a premise that the margin of appreciation is considered an important instrument by the ECtHR and focus on improving its practical application.

Before one speaks of improvement, it is necessary to point out what needs to be improved. Gerards has already summarized some of the main critical arguments against the practice of the margin of appreciation, ie, uncertainty regarding the function, the scope, and the consequences of the margin.^[18] I will address these problems and highlight where there could be changes for a more consistent practice (2.1). Subsequently, I will analyze some of these problems more closely in one specific case (2.2).

2.1 Practical Problems of the Margin of Appreciation

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 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.

2.1.3 Consequences or Standards of Review

Lastly, the ECtHR’s application of the margin of appreciation has also been criticized 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 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.

2.2 The ‘Animal Defenders’ Example

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 the deficiencies brought up here. It is an interesting example, especially because it shows the imprecise use of factors to determine the margin of appreciation and the confusing consequence of the margin (ie, a narrow margin with a procedural approach of the Court).

The Animal Defenders case is based on the allegation of violation of Art 10 (Freedom of Expression) ECHR, regarding a statutory prohibition of paid political advertising on radio and television. The case was brought to the ECtHR after one of the TV campaigns from Animal Defenders International (a non-governmental agency) was banned by the Broadcast Advertising Clearance Centre in the United Kingdom and its attempts to have this administrative decision revoked in the national courts (both the High Court and the House of Lords) were dismissed.^[39]

The ECtHR decided that the margin accorded to the State would be a narrow one after analyzing two relevant factors.^[40] The first one was the type of expression at issue whereby the Court concluded that ‘there is little scope under Article 10 § 2 for restrictions on debates on questions of public interest,’ which is the case of the subject in place (ie, protection of animals).^[41] Furthermore, the Court asserted as a second reason that ‘[t]he margin is also narrowed by the strong interest of a democratic society in the press exercising its vital role as a public watchdog […]: freedom of the press and other news media affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.’^[42] In the case, the Court noted that the NGO exercised a ‘public watchdog role of similar importance to that of the press.’^[43]

Having decided upon the scope of the margin of appreciation, the Court went on to analyze the merits of the case. Nevertheless, it did not proceed directly to assessing the proportionality of the measure.^[44] Even after defining the margin’s width, the Court still cited three other reasons – during the supposed analysis of the merits – for acting in a more deferential tone, in clear contrast to the margin defined earlier.

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 paradoxical 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 fundamental 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 contracting States regarding how to regulate paid political advertising in broadcasting, 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 intensity 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.

3 The Formal Balancing Method: Solving Conflicts of Competences

No simple solution could bring an end to all the criticisms and debate surrounding the margin of appreciation. My aim here, though, is to show that a more structured application of the margin could set aside most of the practical criticisms against it. I believe that this structure should come from the formal balancing method, following Alexy’s principles theory. For this reason, I will explain in this section how balancing could be applied in deferential practices.

The balancing method often cited in the literature is material balancing, ie, the last step of the proportionality test. In this step, courts balance the rights and interests competing in a case to find a solution. The balancing method I propose here is of a different kind. It is formal balancing, which means that it balances formal principles and not material ones. For when courts need to decide when to be deferential, the competing principles at play are competences. In the ECHR, the competence of the Court is defined as extending ‘to all matters concerning the interpretation and application of the Convention and the Protocols thereto,’^[51] allowing it to hear claims of violation of the rights outlined in the Convention.^[52] Though relevant to interpret the jurisdiction of the Court, the idea of competence here is broader than jurisdictional issues, focusing on the intensity of review of the courts. The ECtHR has a competence to review complementary to the ones of the domestic courts,^[53] and a way to differentiate to which extent it will complement or not a domestic decision is through determining its intensity of review. To understand why competences are being balanced, first, I clarify the relationship among intensity of review, competences, and formal principles (3.1). Then, I explain the details of the formal balancing method (3.2).

3.1 Intensity of Review, Competences, and Formal Principles

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, something often common in discussions on judicial review,^[54] is also present when deciding to exercise judicial deference.^[55] Taking the margin example at the ECtHR, Gerards explains that ‘the Court must steer a careful course between respecting national values and providing for effective protection of individual fundamental rights.^[56] Therefore, determining the intensity of review is part of the process of resolving a jurisdictional conflict.^[57]

Although this intensity seems related to the case content, its immediate impact is actually upon the competences. The intensity of review is established by determining how the competence of one authority relates to the competence of the other, what Rivers called ‘relative institutional competence.’ The court’s relative competence, thus, is based on ‘the confidence the court can place in the competence of the other body.’^[58] In other words, the greater the confidence in the other authority’s competence, the lower the court’s competence and, consequently, the lighter the intensity of review, and vice-versa. Defining the intensity of review means establishing the degree to which the competence of the court can be exercised.

The relationship between deference and intensity of review can be clarified through the formal balancing method, using competence norms as the link. Deference is the expression of ‘clashing competences,’ and a way to solve this kind of clash is through balancing. As mentioned above, balancing is applied to solve a conflictual situation involving principles. Competence norms, like any other legal norms, can either be rules or principles.^[59] In case they are principles, they are considered formal principles (in contrast to material principles, such as rights).^[60] Formal principles are related to authoritative commands, whereas material principles establish substantive legal content.^[61] The optimization object of formal principles is legal decisions regardless of their content. Formal principles require that the authority of norms is optimized.^[62] As concisely defined by Klatt, ‘formal principles establish who is in charge of deciding upon substantive legal content.’^[63]

The focus here is placed only on formal principles because they are the type of legal norms that express the idea of ‘varying degrees of satisfaction,’^[64] and intensity of review is exercised in different degrees. As explained by Gerards, ‘intensity of review is often thought in terms of a “sliding scale,” ranging from a very marginal deferential test to very strict or rigorous scrutiny.’^[65] Competence as formal principles is, thus, the best way to reconstruct the practice addressed here.

Translating into the principles theory language, while establishing the intensity of review, the competence to review of the court (a formal principle) is competing with the competence of another authority (another formal principle) to establish a decision on the merits of the case. In other words, ‘formal principles establish who is in charge of deciding upon substantive legal content.’^[66] In the case of the ECtHR, for example, it is a situation where the competence of the Court is competing with another competence of one of the authorities of a member state. It means that to determine how much deference will be given to a certain authority in a case, it is necessary to assess the degree each competence has in the case and which competence will prevail. The degree to which each competence will be exercised can be determined by applying the balancing method. As expresses Alexy’s Law of Competing Principles:

‘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 competence of another authority, the court should exercise a light intensity of review, which can be translated into judicial deference.

3.2 The Use of Formal Balancing to Determine the Intensity of Review

If the intensity of review is connected to competence issues and legal principles, it should be possible to structure its assessment – and consequently the exercise of deference – through the same methodology applied to solve the conflict of material principles, ie, balancing.

Like material principles, formal principles can be balanced. Formal principles have the same characteristics as material principles, ie, they are also optimization requirements.^[68] However, the act of balancing formal principles is still a debatable subject. Different approaches have been taken, which can be summarized mainly by distinguishing two groups: the group of scholars who defend that balancing formal principles is necessarily connected with balancing material principles (Combination Model) and those who defend that balancing formal principles should be perceived as an individual and independent balancing process (Separation Model).^[69]

Even though I recognize the relevance of the discussion about which model to follow, I will not undergo it in this paper. For the purposes here, it is only important to know that I follow mainly the analysis of Klatt and his theory of institutional practical concordance, which is representative of the separation model.^[70] In his theory, Klatt recognizes that when competences collide, two formal principles also collide, and it is possible to apply balancing to solve this conflict. Klatt, thus, defends the possibility of balancing formal principles against each other in a process that is independent of the material balancing in a case (ie, deciding which colliding right or interest should have preference).^[71]

The choice for the separation model is justified not only because of its guarantee of the independence of formal principles but also because of its direct connection to jurisdictional issues.^[72] In the versions of the combination model, formal principles have been mainly used to provide an answer to moments of discretion.^[73] The separation model, in contrast, allows the presentation of a broader account of competence relations (such as the one demonstrated here). Consequently, competence matters are treated with the importance they deserve.

The steps for the formal balancing method in Klatt’s separation model are based on the well-known steps that are applied in material balancing. The three steps of formal balancing are as follows:

‘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 case of formal balancing, any solution that is proposed to resolve a conflict of competences and that follows the internal structure provided by the Law of Formal Balancing is internally justified.^[79] The external justification, on the other hand, places a focus on justifying the evaluation of the weights attributed to the formal principles (competences), and this can only be done by regarding the specific aspects of the case. As stated by Klatt, ‘external justification depends on arguments external to the balancing itself, regarding the concrete weight of an interference with a competence.’^[80] It is precisely at this point that substantive elements will play a role in formal balancing. Different factors can influence the weight of a competence. These factors might be derived from substantive elements of the merits of the case (eg, type of the right at stake). Hence, substantive elements do not participate directly in the internal justification (ie, in the Law of Formal Balancing) but in the external justification. To assess the weight of each competence, all relevant factors must be taken into consideration.^[81] Relevant factors are all argument types present in a certain jurisdiction that are relevant to the justification of the preference relations between the conflicting competences.^[82]

Balancing orderly steps and its precise use of the factors work as a skeleton that can be applied to the margin of appreciation. Therefore, the formal balancing method is categorically a capable method to structure the exercise of deference by clarifying the intensity of review assessment.

4 Structuring Deference at the ECtHR

Once in the knowledge of the main premises of formal balancing, it is time to see how this method can be applied at the ECtHR’s use of the margin of appreciation. I explain now how adding the structure of formal balancing to the margin improves its application in each of the practical problems raised above (4.1). In the end, I also demonstrate the improvements in the reasoning of the Animal Defenders case (4.2).

4.1 Improving the Function, Scope, and Consequences

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 stronger the Court’s competence is in relation to the national authority’s competence in the case.

The factors should be applied precisely to justify the weights of these competences. They do not balance against each other; the competences that balance against each other. The factors are relevant to assign a weight to each competence in a justified way. It is also important to remember that none of the factors should be seen as determinative; on the contrary, all of them must be taken into consideration during the Court’s assessment. For instance, a very important right in a case might justify a heavier weight to the competence of the Court and, therefore, endorse a narrower margin of appreciation. Nonetheless, it is still possible that cases with very important rights will end up with a wide margin, depending on how the other factors influence the weight of the competences at stake. Along these lines, the Court must duly justify its decision based on all the circumstances of the case and not only those that it chooses to be the most important.

Hence, the formal balancing method not only provides the Court a specific function for the margin of appreciation but also a more effective structure to the margin’s scope. It introduces precise steps regarding how to apply the factors and how to achieve the intensity of review. Clarity at this point prevents the Court from being accused of bias towards one or another factor or of arbitrariness regarding its choice of scrutiny.

Lastly, formal balancing also brings a positive influence on the consequences of the margin. It appears as though defining the possible outcomes is not really a matter of applying a proper methodology but of having a consistent approach in the case law for each scope of the margin. Nonetheless, the formal balancing method positively influences this problem too. Once the explicit structure of balancing is applied, a clear scope to the margin of appreciation can be found. It should be easier, then, for the Court to choose distinct scrutiny approaches based on a clear scope. In other words, a precise process for determining and justifying a specific intensity of review will provide more transparent results.

Consequently, once the Court has clear results and can properly justify how it got them, it can also determine how it is going to accurately express these results on the case. With such a rational chain of argumentation, it gets easier to reproduce these choices in the future and to keep a consistent approach in similar cases. For example, this provides an opportunity to clarify the relationship between the procedural review approach (sometimes exercised by the Court) and the margin of appreciation and to strengthen the use of this approach. Such a relationship is still not very clear.^[85] Sometimes, the procedural approach is portrayed as somehow relevant for determining the width of the margin of appreciation; at other times, it 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.

4.2 Applying the Balancing Method

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 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 institution 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 highlighted 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 factor^[91] 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 consensus regarding how to regulate paid political advertising in broadcasting, leaving more room for the national authorities to come up with their own answers.

Overall, we may conclude that the majority of the factors point in the direction of providing a heavier weight to the competence of the UK Parliament than to the one of the ECtHR. In the form of the Weight Formula, this argumentation would look as follows:^[92]

Wc,p = Cc: Cp: 4 × 1 × 2 × 1 2 × 4 × 4 × 4 = 8 24 = 1 3

In this case, results above 1 would indicate the prevalence of the competence of the Court; below 1, the preference would be of the domestic parliament. According to the Law of formal balancing,^[93] after analyzing the degree of non-satisfaction of the competence of the UK Parliament and the importance of satisfying the ECtHR’s competence, the strong satisfaction of the latter competence was not justified, according to the Court’s reasoning. In other words, we should conclude that the preference given to the UK Parliament’s competence in the Animal Defenders case would result in a light intensity of review pointing to a wide margin of appreciation, thus providing a clear justification for a deferential approach.

As mentioned above, the Court decided for a narrow margin but ended up following a deferential approach, nonetheless. The discrepancy between the application of the margin and the scrutiny adopted by the Court was also mentioned in one of the dissenting opinions, in which the judges argued that, by establishing a narrow margin, ‘nothing justifies a departure from the well-established methodology of proportionality analysis.’^[94]

The current analysis of the margin of appreciation, conducted based on the balancing method, indicates that the Court should have decided for a wide margin if a light intensity of review was defined. The results of this wide margin could mean taking a similar approach to the one given by the Court in the present case, ie, reviewing the proportionality analysis through the lens of the national authorities’ scrutiny.

In this regard, the final decision that would be made in the present case if applied the balancing method could be something similar to what we already see in the actual decision. Nonetheless, the advantage of such a method is evident. Balancing not only can be used to organize the arguments of the Court into a clear order and with a clear structure (especially regarding the use of the factors), but it also highlights precisely the need to justify any deferential approach that the Court might take.

5 The Advantages of Formal Balancing

Formal balancing is a good method for structuring the assessment of the intensity of review in courts. Such a clear structure could be added to the margin of appreciation for the same purposes. Besides providing a structured way to deal with the intensity of review, the formal balancing method also has two additional advantages that should advance its application. First, it has similar characteristics to the margin of appreciation. In this respect, merging the structured method of balancing with the margin would not entail completely replacing the margin and its current aspects. Second, the structure of balancing demands justification and transparency, which improves the quality of the reasoning.

Starting with the first advantage, the main characteristics of the margin of appreciation coincide with those present in the balancing method. Even though the margin of appreciation has not been applied in exactly the same manner in all cases,^[95] its application has at least two main common features.

The first common feature is the similarity between the margin of appreciation and the idea of flexibility.^[96] The ECtHR might assign a narrow or a wide margin of appreciation to a national authority, for example. There are, thus, different intensities of review that are related to the application of the margin of appreciation.^[97] Deference is just one spectrum of the courts’ review, depending on how they balance their roles in a case.

Scholars have also cited that different factors are used to determine the different intensities of the margin,^[98] explaining that ‘(…) the actual amount of deference granted in a specific case depends on the factors determining the scope of the margin.’^[99] The main factors highlighted in the literature include the importance of 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 depends 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 specific set of circumstances in a specific case. There is no general preference to the competence of the Court or the States. According to Besson, this is precisely one of the functions of the principle of subsidiarity in human rights law, ie, establishing complementarity of review powers.^[107] Human rights subsidiarity recognizes that both courts are competent to review, but that ‘international human rights institutions exercise their competence to review only once domestic remedies have been exhausted (…) and only to a limited degree and scope.’^[108] Formal balancing, as a method, can help to strike a balance between both competences and express more clearly the degree and scope of a review.

However, the usefulness of balancing when courts exercise deference appears beyond its structural compatibility with the main features of the margin. Balancing brings advantages also in terms of justification and transparency, as already defended in the literature. Stone Sweet and Mathews, for example, claim that a court that applies balancing is more honest. According to them, balancing would make it clear that each side of the conflict claims a constitutionally legitimate norm; that both conflicting interests are held in equally high esteem; and that determining which value should prevail is not simply a mechanical exercise.^[109] In other words, balancing advances all elements needed to reach a decision.

In a similar approach, Barak asserted that with proportionality – and the act of balancing as part of it – ‘the process of judicial decision-making becomes open to the reader. The reasons at the decision’s foundation are provided, as well as their relative weight. Thus, those decisions are better explained and understood. Moreover, it becomes much easier to properly criticize those decisions.’^[110] According to him, balancing is related to transparency, and transparency ‘is a major contribution to the notion of fairness and integrity in the decision-making process.’^[111] Therefore, balancing can be used as a method to guide judicial reasoning in a more accountable approach. It should not be seen as a magical tool that creates ‘correct’ answers but as an argumentative tool that can be wielded to improve the legitimacy of a decision. Balancing is as precise as the justification of the premises applied can be precise.^[112]

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 argumentative 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.

The notion and structure of balancing competences organize the margin of appreciation in a way to free it from its main criticisms. In other words, balancing helps with determining a specific function for the margin of appreciation (ie, to determine the intensity of review); with clearing out the scope of the margin (eg, by organizing the application of factors, or clarifying how to determine the different degrees of scrutiny through the idea of competing principles); and with facilitating the choices for the consequences of each scope of the margin (ie, predictability related to determining the different intensities of review helps in the predictability and consistency of the types of review the Court will apply).

While applying the formal balancing method for determining the margin of appreciation, three important points need to be taken into consideration. First, it is necessary to assess the scope of the margin of appreciation before a full appraisal of the merits of the case can be made. Second, all relevant factors should be applied at the balancing exercise, and the goal of using these factors is to provide reasons that justify the weight assigned to the competing competences in the case. It is important to remember that competences that collide against each other, not the factors. Furthermore, the idea of applying all relevant factors is related to avoiding arbitrariness in judicial decisions. Once the Court identifies which are the relevant factors, it should keep applying them all time, consistently. Third and last, the Court must provide explicit and consistent outcomes for each of the possible scopes of the margin, and this is easier to achieve once the margin has been properly applied and justified.

I have demonstrated with the example of the margin of appreciation at the ECtHR that deference can be exercised in a more structured way. I hope that, with this insight of applying formal balancing in jurisdictional matters, the frequent idea of connecting deference exclusively to courts’ discretion and exempting them from properly justifying their decisions regarding the degree of scrutiny can be reassessed.

Corresponding author: Carolina A Chagas, University of Graz, Graz, Austria, E-mail: c.a.chagas@protonmail.com

Published Online: 2022-02-25

Published in Print: 2022-03-28

Artikel in diesem Heft

https://doi.org/10.1515/icl-2021-0009

Schlagwörter für diesen Artikel

balancing; conflict of competences; ECtHR; judicial deference; margin of appreciation