Pluralism, Deference and the Margin of Appreciation Doctrine

Published date01 January 2011
Date01 January 2011
Pluralism, Deference and the Margin of
Appreciation Doctrine
Janneke Gerards*
Abstract: In this article it will be argued that good use of the instrument of deference
might help the EU courts to deal with the situation of pluralism that is currently visible in
the European legal order. By means of deferential judicial review, the EU courts can pay
due respect to national constitutional traditions and to national legislative and policy
choices, thus preventing situations of real conf‌lict. In addition, deference enables the EU
courts to take into account the intricacies related to judicial review of norms drafted by
co-equal institutions or by national elected bodies. Although the EU courts already make
use of some form of deferential review, they may use the instrument in a clearer and more
structured manner. As a basis for the development of a European ‘doctrine of deference’,
a comparison will be made with the margin of appreciation doctrine devised by the
European Court of Human Rights. Although this doctrine is certainly not fault-free, it
offers a number of advantages in terms of clarity and controllability. If improved and
adapted on the basis of theoretical notions of procedural democracy, the doctrine might be
put to good use by the EU courts.
I Introduction
It has now become widely accepted that the EU cannot be regarded as a single,
hierarchical legal system in which there is complete supremacy of the legal rules created
by the EU institutions1over national legislation and even over national constitutions.2
Instead, EU constitutional scholars have come to regard the EU as a complex, pluralist
legal order, in which there is close interaction and dialogue between the EU institutions
and the national authorities, but no clear hierarchical relationship.3Indeed, the notion
* Professor of Constitutional and Administrative Law, University of Leiden, Institute for Public Law,
Section of Constitutional and Administrative Law.
1The expression and pref‌ix ‘EU’ will be used in this article, except for the situation in which specif‌ic
reference is made to the European Community (‘EC’ or ‘Community’). The term ‘EU courts’ is used to
indicate both the European Court of Justice (ECJ) and the Court of First Instance; now the General
2This was different at the end of the 1990s; eg J.H.H. Weiler, The Constitution of Europe (Cambridge
University Press, 1999) ch 9.
3See, eg, N. MacCormick, ‘The Maastricht-Urteil: Sovereignty Now’, (1995) 1 European Law Journal 259;
I. Maher, ‘Community Law in the National Legal Order: A Systems Analysis’, (1998) 36 Journal of
Common Market Studies 237; M. Kumm, ‘Who is the Final Arbiter of Constitutionality in Europe?: Three
Conceptions of the Relationship between the German Federal Constitutional Court and the European
Court of Justice’, (1999) 36 Common Market Law Review 351; N. Walker, ‘The Idea of Constitutional
European Law Journal, Vol. 17, No. 1, January 2011, pp. 80–120.
© 2010 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
of pluralism provides an adequate description of the current relationship between the
legal orders within the EU.4At the same time, the recognition of the pluralist character
of the European legal order evokes a multitude of practical and theoretical questions.
If there is no hierarchical relationship between legal norms, new ways have to be found
to solve conf‌licts between norms and to determine who is authorised to provide the f‌inal
interpretation of such norms. Some contend that a solution can only be found in the
recognition of one single principle or rule of priority.5Others have submitted that a
presumption of supremacy of EU law should be accepted which can be rebutted by
overriding national constitutional concerns.6And it has also been argued that prag-
matic solutions of dialogue may be suff‌icient to deal with any practical problems
In this article, the theoretical debate on the need for one decisive principle to solve
conf‌licts between the European legal orders will be left aside. Instead, the focus will be
on one of the available practical remedies for the problems posed by constitutional
pluralism.8It will be argued that good use of the instrument of ‘deference’, and more
specif‌ically of variability of the intensity of judicial review, might help supranational
courts to avoid conf‌licts between norms arising from the different legal orders. By
means of deferential review, the EU courts can pay due respect to national constitu-
tional traditions and to national legislative and policy choices, thus preventing situa-
tions of real conf‌lict. In addition, deference enables the EU courts to take into account
the intricacies related to judicial review of norms drafted by co-equal European insti-
tutions, or by national elected bodies. Although the European Court of Justice of the
European Union (ECJ) and the General Court already make use of some form of
deferential or marginal review, and although some variation in the intensity of their
review is already visible in European case-law, the EU courts might use the instrument
in a much more clear and ref‌ined manner.
Based on this premise, this article will make an argument for the development of a
consistent and structured ‘doctrine of deference’ to be used by the EU courts. To do so,
general doctrines of deference and variability of intensity of review will f‌irst be related
to the specif‌ic problematic constituted by judicial review in a pluralistic legal order
Pluralism’, (2002) 65 Modern Law Review 317; M. Poiares Maduro, ‘Contrapunctual Law: Europe’s
Constitutional Pluralism in Action’, in N. Walker (ed), Sovereignty in Transition. Essays in European Law
(Hart, 2003), 501; M. Poiares Maduro, ‘Sovereignty in Europe: The European Court of Justice and the
Creation of a European Political Community’, in M.L. Volcansek and J.F. Stack Jr (eds), Courts Crossing
Borders. Blurring the Lines of Sovereignty (Carolina Academic Press, 2005), 43.
4eg Walker, ‘The Idea of Constitutional Pluralism’, ibid, at 337. Other explanatory terms and notions also
have some value, such as the notion of ‘multi-levelness’: F. Mayer, The European Constitution and the
Courts. Adjudicating European Constitutional Law in a Multilevel System, Jean Monnet Working Paper
9/03, at 36–37, available at>, also mention-
ing a variety of other notions. However, the notion of pluralism will be used in this article since it is used
in legal scholarship most frequently.
5eg W.T. Eijsbouts and L. Besselink, ‘Editorial: “The Law of Laws”—Overcoming Pluralism’, (2008) 4
European Constitutional Law Review, 395, at 397.
6See, eg, Kumm, op cit n3supra, at 375–376, formulating a set of constitutional principles providing a
normative framework for the assessment of doctrines dealing with the relationship between the ECJ and
the national courts. See more elaborately M. Kumm, ‘The Jurisprudence of Constitutional Conf‌lict:
Constitutional Supremacy in Europe before and after the Constitutional Treaty’, (2005) 11 European Law
Journal 262, at 297–298.
7cf MacCormick, op cit n3supra, at 265, stating that both national and EU courts should have regard to
the consequences and impact of their judgments on the other legal order.
8There is clear need for such solutions; cf Eijsbouts and Besselink, op cit n5supra, at 396.
January 2011 Margin of Appreciation Doctrine
© 2010 Blackwell Publishing Ltd.
(section II). In section III, an analysis of the case-law of the EU courts will be provided
in order to disclose the use these courts already make of the instrument of deference.
Subsequently, in section IV, the case-law of the EU courts will be contrasted with the
approach taken by the European Court of Human Rights (ECtHR). The ECtHR has
devised and applied its well-known margin of appreciation doctrine as an instrument to
negotiate between conf‌licting interests in a multi-layered legal order. Although the legal
framework created by the European Convention on Human Rights is very different
from that established by the European Union, the EU courts and the ECtHR experi-
ence partly overlapping problems related to pluralism.9For that reason, the doctrine of
the margin of appreciation might provide an interesting example to the EU courts.10
Finally, in section V it will be argued that the use of a ‘margin of appreciation’-like
instrument might be of great value for the EU courts. If such a doctrine is put to good
use, and if account is taken of the diff‌iculties the ECtHR has experienced in the
application of the doctrine, it might provide a valuable instrument to accommodate
some of the diff‌iculties posed by the complex situation of constitutional pluralism.
II Pluralism, Judicial Review and the Need for Deference
A The Problem: Pluralism and the Position of the EU Courts
Generally, national courts, legislatures and governmental bodies appear to be quite
willing to cooperate with the EU courts.11 Many scholars have stressed that there are
hardly any problems of non-conformity with the ECJ’s and General Court’s judg-
ments.12 However, the high overall level of compliance notwithstanding, various
9cf L.R. Helfer and A.M. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, (1997)
107 Yale Law Review 273, at 285; see also at 287–288.
10 cf D. Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’, (2003) 13 Duke Journal of
Comparative and International Law 95, at 136, indicating that the approach of the ECJ is already similar
to that of the ECtHR. It is argued here, however, that express recognition of such a doctrine might
provide clarity and predictability in the ECJ’s case-law and might bolster good relations between national
courts and European courts.
11 cf M. Shapiro, ‘The European Court of Justice’, in P. Craig and G. de Búrca (eds), The Evolution of EU
Law (Oxford University Press, 1999), 321, at 326. However, Mayer has shown that there are still
important national highest courts that do not or only rarely make preliminary references to the ECJ and
thus do not make effective use of the most important instrument for interaction and cooperation between
the European and the national court level: Mayer, op cit n4supra, at 4 ff. According to Mayer, this points
to the potential for disobedience (at 22).
12 cf Weiler, op cit n2supra, at 192 ff, and Helfer and Slaughter, op cit n9supra, at 292. See also B. De Witte,
‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P. Craig and G. de Búrca (eds), The
Evolution of EU Law (Oxford University Press, 1999), 177, at 193. The fact that close cooperation with the
supranational bodies provides additional empowerment to national courts has often been noted to
stimulate their willingness to accept European judgments and interpretations: K. Alter, ‘Explaining
National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal
Integration’, in A.M. Slaughter, A. Stone Sweet and J.H.H. Weiler (eds), The European Court and
National Courts—Doctrine and Jurisprudence. Legal Change in its Social Context (Hart, 1998), 227, at 242;
W. Mattli and A.M. Slaughter, ‘The Role of National Courts in the Process of European Integration:
Accounting for Judicial Preferences and Constraints’, in Slaughter et al,ibid, 253, at 258; Weiler, op cit n
2supra, at 197; Maduro, ‘Sovereignty in Europe, op cit n3supra, at 51–52. See also A. Stone Sweet, The
Judicial Construction of Europe (Oxford University Press, 2004), at 21; A.M. Slaughter, ‘Judicial Global-
ization’, (2000) 40 Virginia Journal of International Law 1107. Further explanations have been found in
the quality and persuasive force of the EU courts’ reasoning (cf Helfer and Slaughter, op cit n9supra,at
307 ff, in particular at 318), in the gradual and incremental way in which these courts have developed their
European Law Journal Volume 17
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