Speaking the Same Language? Comparing Judicial Restraint at the ECtHR and the ECJ
Shifting Centres of Gravity in Human Rights Protection, Rethinking relations between the ECHR, EU and national legal orders, 2016
29 Pages Posted: 28 Dec 2017
Date Written: January 2016
This chapter compares the margin of appreciation doctrine at the European Court of Human Rights (ECtHR) with deference at the European Court of Justice (ECJ). It elaborates the distinction between systemic and normative elements of judicial restraint for both systems, producing two key findings. The first is that despite differences in presentation, there are some striking similarities in approaches across both systems. The second is that the blending of systemic and normative elements of judicial restraint is a somewhat problematic aspect of the case-law of both courts and an area in which they should work towards providing more clarity.
Keywords: deference, margin of appreciation, European Court of Human Rights, European Court of Justice
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