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The Margin of Appreciation Doctrine, the Very Weighty Reasons Test and Grounds of Discrimination

M. Balboni (ed), The principle of discrimination and the European Convention of Human Rights, Editoriale Scientifica, 2017, Forthcoming

20 Pages Posted: 29 Nov 2016 Last revised: 11 May 2017

Janneke Gerards

Utrecht University - Faculty of Law; Institute for Jurisprudence, Constitutional and Administrative Law

Date Written: May 1, 2017

Abstract

When deciding non-discrimination cases, the European Court of Human Rights (Court) operates in a complex context. It is asked to hand down binding judgments in cases of a widely varying nature, which are brought by individuals from all over Europe. The Court tends to be very strict in dealing with clear discriminatory treatment, such as direct discrimination based on race, sexual orientation or gender. It may be more difficult for it, however, to set uniform standards regarding contentious issues, such as same-sex marriage, adoption by single parents, language regulations, social benefits and integration policies for immigrants. Although the Court has to guarantee a minimum level of protection against discrimination also in relation to such difficult matters, it can reasonably be expected to pay heed to the divergent views and values.

It is almost overly well-known that one of the ways in which the Court has endeavoured to find a way through such fields of tension is by means of its famous margin of appreciation doctrine. Clearly this doctrine is just as relevant for discrimination cases as for cases about substantive Convention rights. From that perspective it is the more interesting to see that in the field of non-discrimination law, the Court traditionally uses the margin of appreciation doctrine in a different form, i.e. in the form of the 'very weighty reasons test'.

Seemingly, the difference between the margin of appreciation doctrine and the 'very weighty reasons test' is simply one of phraseology, without any concrete bearing on the Court's reasoning. It is quite well possible, however, that, indeed, the different labels do relate to a different content. If that would be the case, the question might be raised which differences can be observed and whether and to what extent they can explain and justify the use of different 'brands' of intensity of review in the Court's case-law. This chapter aims to answer these questions by looking into the common starting point of the margin of appreciation doctrine and the very weighty reasons test as well as by analysing the similarities and differences between the Court's application of the two doctrines or tests.

Keywords: European Court of Human Rights, European Convention on Human Rights, Margin of Appreciation Doctrine, Very Weighty Reasons Test, Non-Discrimination, Judicial Review, Judicial Reasoning

Suggested Citation

Gerards, Janneke, The Margin of Appreciation Doctrine, the Very Weighty Reasons Test and Grounds of Discrimination (May 1, 2017). M. Balboni (ed), The principle of discrimination and the European Convention of Human Rights, Editoriale Scientifica, 2017, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2875230

Janneke Gerards (Contact Author)

Utrecht University - Faculty of Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

Institute for Jurisprudence, Constitutional and Administrative Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

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