A ‘Margin of Appreciation’ in the Internal Market: Lessons from the European Court of Human Rights

Abstract

This article charts the interplay between universality and particularism in the approach of the European Court of Justice to national restrictions upon the four freedoms. Comparisons are made with the jurisprudence of the European Court of Human Rights. It is shown that both courts allow a national 'margin of appreciation' within which overlapping European and local public interests can be balanced. The article draws inspiration from research into the impact of the margin of appreciation upon the universality of human rights in order to understand the potential of the doctrine for the enlarged European Union. The doctrine is placed within a normative framework based upon the European Union as an 'essentially contested' project. The use of the doctrine by the European Court of Justice is analysed then in the light of this framework, with particular emphasis placed upon the existence of outer limits to the doctrine, and the factors that guide its width. * Lecturer, Department of Law, Durham University (UK). Thank you to Ian Ward and Stephen Weatherill, who read and commented upon an earlier draft of this work. The usual disclaimer applies. 1. See I. Ward, 'The Culture of Enlargement' (2005) 12 Columbia Journal of European Law 199. 2. Similar issues have arisen in respect of state aids, but will not be discussed here; E. Psychogiopoulou, 'EC State Aid Control and Cultural Justifications' (2006) 33 Legal Issues of Economic Integration 3.

The European Court of Justice as a Constitutional Court. Legal Reasoning in a Comparative Perspective

“…y ss. );Sweeney (2007);Gerards (2011, p. 89 y ss. ), analizando los factores que determinan la intensidad de la revisión de las medidas nacionales por parte del TJUE y abogando por la adopción de una doctrina del margen de apreciación explícita y coherente por parte del TJUE.…”