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

Abstract

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.