Environment Playing Short‐handed: Margin of Appreciation in Environmental Jurisprudence of the European Court of Human Rights

• Author: Hana Müllerová
• Published date: 01 April 2015
• DOI: http://doi.org/10.1111/reel.12101
• Date: 01 April 2015

Environment Playing Short-handed: Margin of

Appreciation in Environmental Jurisprudence of the

European Court of Human Rights

Hana Müllerová*

The European Court of Human Rights established the

interpretative doctrine of margin of appreciation to

support the subsidiarity principle underlying the

whole system of the Council of Europe. Despite not

being well accepted by theorists, the doctrine has

found its way into many rights enshrined in the Euro-

pean Convention on Human Rights. This article ana-

lyzes how the Court applies the margin of appreciation

in environment-related cases, based on Article 8 of the

Convention. The objective is to uncover how the wide

margin of appreciation granted to States in environ-

mental matters impacts on the environment. In that

regard, the methods of the Court in hearing environ-

mental cases and their results are examined. Special

attention is paid to how the Court balances the com-

peting interests within the fair balance assessment and

how it evaluates whether the respondent State

exceeded the margin of appreciation.

INTRODUCTION

The European Court of Human Rights has developed

the interpretative doctrine of the margin of apprecia-

tion, which has become a well-established part of its

case law. The doctrine, having brought a substantial

limitation into the scope of the Court’s own review, has

invited ‘far more criticism than praise’ in legal writings.1

Nevertheless, the Court has extended the application of

the doctrine from one single Article in 1961 to numer-

ous rights guaranteed by the European Convention on

Human Rights.2Today, the margin of appreciation

applies also to the right to respect for private and family

life under Article 8, serving as a basis from which the

protection of environmental values regularly derives.

Therefore, the Court often refers to this doctrine in its

environmental jurisprudence.

In environmental cases, the margin of appreciation

involves the Court’s review of whether a fair balance

was struck between competing interests of the indi-

vidual and of the community as a whole; the latter often

being represented by an economic activity. Such an

activity (industrial, transport or another) may serve the

community – it may build infrastructure, create jobs

and contribute to the economic well-being of the region

or of the whole country. But at the same time, the

operation, especially when located in an immediate

proximity to individual dwellings, often harms the indi-

vidual rights and the environment – for instance, by

producing emissions.

The margin of appreciation doctrine in general has

already been very well covered in the scholarly litera-

ture.3This article seeks to explore how the doctrine

impacts specifically on environment-related cases. The

study is based on the scholarly writings that describe

the doctrine and the way the Court has been using it in

its jurisprudence, and on the Court’s decisions in envi-

ronmental cases where the margin of appreciation was

applied. The focus is kept on cases where Article 8 of the

Convention was invoked, leaving aside the environ-

mental decisions based on other provisions of the Con-

vention. In the cases examined, the focus is on the

doctrine’s impacts on the environment rather than

those on individuals. The inquiry takes into account

that the protection of environmental values under the

Convention mechanism is specific: it is attainable solely

as a side-effect of the protection of other rights. There

are no explicit environmental rights in the Convention

* Corresponding author. Email: mullerova@ilaw.cas.cz.

1Y. Arai-Takahashi, ‘The Margin of Appreciation Doctrine: A Theo-

retical Analysis of Strasbourg’s Variable Geometry’, in: A. Follesdal,

B. Peters and G. Ulfstein (eds.), Constituting Europe: The European

Court of Human Rights in a National, European and Global Context

(Cambridge University Press, 2013), 62, at 63–64.

2European Convention on Human Rights (Rome, 4 November 1950;

in force 3 September 1953) (‘ECHR’).

3See, e.g., Y. Arai-Takahashi, n. 1 above; J.A. Brauch, ‘The Margin

of Appreciation and the Jurisprudence of the European Court of

Human Rights: Threat to the Rule of Law’, 11:1 Columbia Journal of

European Law (2005), 113; S. Greer, ‘The Margin of Appreciation:

Interpretation and Discretion under the European Convention on

Human Rights’, Human Rights Files No. 17 (2000), found at: http://

www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-

17(2000).pdf; J. Christoffersen, Fair Balance: Proportionality,

Subsidiarity and Primarity in the European Convention on Human

Rights (Martinus Nijhoff, 2009); G. Letsas, ‘Two Concepts of the

Margin of Appreciation’, 26:4 Oxford Journal of Legal Studies (2006),

705; D. Spielmann, Allowing the Right Margin the European Court of

Human Rights and the National Margin of Appreciation Doctrine:

Waiver or Subsidiarity of European Review? (Centre for European

Legal Studies, University of Cambridge, 2012).

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Review of European Community & International Environmental Law

RECIEL 24 (1) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12101

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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