The Margin of Appreciation and the Principle of Subsidiarity: A Comparison

Abstract

Taking stock of the efforts to amend the Preamble of the European Convention on Human Rights (ECHR) undertaken by Protocol No. 15 to the ECHR, the paper compares the ECHR concept of the margin of appreciation with the principle of subsidiarity as developed in the European Union (EU) constitutional order. The paper underlines how the ECHR-based margin of appreciation and the EU principle of subsidiarity present several similarities. In particular, it argues that both concepts represent mechanisms which serve the purpose of allocating the exercise of powers in multi-layered regimes, characterized by jurisdictional redundancies. Nevertheless, the paper also sheds light on two important differences between the ECHR-based margin of appreciation and the EU principle of subsidiarity – namely their legal nature and institutional focus. Ultimately, the paper suggests that the constitutionalization of the principle of subsidiarity in Protocol No. 15 to the ECHR is inspired by the desire to entrench a negative, court-focused criterion which aims at restricting the authority and legitimacy of the European Human Rights Court – consistent with the political pressures behind the Brighton Conference and the ensuing amendments to the ECHR. Yet, it also warns that reference to the principle of subsidiarity may open unexpected paths.

Keywords: Margin of appreciation, principle of subsidiarity, EU law, ECHR, comparative method