ICL Journal 2021; aop

Carolina A Chagas*
Balancing Competences and the Margin of
Appreciation: Structuring Deference at the
ECtHR
https://doi.org/10.1515/icl-2021-0009
Published online February 25, 2022

Abstract: The margin of appreciation is an important argumentative framework

employed by the ECtHR. Through its application, the Court may establish a
balanced relationship with the member states. This is why the margin is one of
the main sources for the ECtHR’s exercise of deference. Deference happens
when low intensity of review is applied – or a wide margin. Therefore, to properly
know when to act deferentially demands a clear procedure to determine the
intensity of review. However, the application of the margin still presents some
weak points and lacks consistency. In this paper, I defend the possibility of
applying formal balancing to provide a clearer structure for the exercise of
the margin of appreciation and, thus, a way to improve deferential practices
by the ECtHR. With the clear structure of balancing, factors are employed in
a more organized manner and the relationships behind the idea of determining
the intensity of review are explicitly justified. Hence, the notion and structure
of balancing competences organize the margin of appreciation in a way to free
it from its main criticisms and fulfill the argumentative potential it has.

Keywords: balancing, conflict of competences, ECtHR, judicial deference, margin

of appreciation

1 Introduction
The margin of appreciation (or the margin) is an important argumentative
framework employed by the European Court of Human Rights (ECtHR or the Court).
Through its application, the Court may establish a balanced relationship with the

*Corresponding author: Dr. Carolina A Chagas, University of Graz, Graz, Austria,

E-mail: c.a.chagas@protonmail.com. https://orcid.org/0000-0002-9486-6344
2 C A Chagas

member states.1 This is why the margin is one of the main sources for the ECtHR’s
exercise of deference. The connection between the margin of appreciation and the
exercise of deference by the ECtHR is well-established.2 The source of this
connection is the subsidiary role of the Court. There is a link between the principle
of subsidiarity and the margin of appreciation, which derives from the idea that,
since national authorities would be better placed to deal with some human rights
issues, the Court should sometimes grant them a margin to provide their own
solutions to protect those rights.3
The ECtHR usually applies the margin of appreciation when it exercises
deference because the margin is the primary way with which the court might
determine the intensity of its review; ie, the Court might provide wide or narrow
leeway when assessing the compatibility of the decisions of member states to the
European Convention (ECHR).4 I understand judicial deference, then, as the
respect given to the decisions of the domestic authorities,5 an expression of light
intensity of review.
The ECtHR’s broad use of the margin of appreciation has motivated different
studies on this instrument and its multiple uses. Some of these studies have
pointed out that the margin has been applied in different ways, lacking
consistency.6 A reason for the variable application of the margin might be the
absence of a clear methodology to its exercise, which produces negative conse-
quences. For instance, the inconsistent application conflicts with legal certainty

1 See, eg, Eva Brems, ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court
of Human Rights’ (1996) 56 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 240,
294; Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the Euro-
pean Court of Human Rights’ (2018) 18(3) Human Rights Law Review 495, 497.
2 See, eg, Andrew Legg, The margin of appreciation in international human rights law: Deference
and proportionality (Oxford University Press 2012); Johannes H Fahner, Judicial Deference in In-
ternational Courts: A comparative analysis (Hart Publishing 2020) Chapter 2.
3 See Gerards (n 1) 4; Andreas Follesdal, ‘Exporting the margin of appreciation: Lessons for the
Inter-American Court of Human Rights’ (2017) 15(2) International Journal of Constitutional Law
359, 363; George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford J Legal
Studies 705, 721; Legg (n 2) 61–62.
4 On the use of a narrow or wide margin of appreciation, see, eg, Gerards (n 1) 499–500; Janneke
Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17(1) European Law
Journal 80, 101.
5 See Fahner (n 2) 5.
6 See, eg, Gerards (n 1) 500; Oddný M Arnardóttir, ‘Rethinking the Two Margins of Appreciation’
(2016) 12(01) European Constitutional Law Review 27, 307.
 Balancing Competences and the Margin of Appreciation 3

and prevents the Court from stating clearly the standards of review being applied in
its decisions.7
A possible solution to deal with the shortcomings of the margin’s applicability
is to add a coherent reasoning method to its application. This suggestion would
not only make the choices for a deferential approach more straightforward but
would also enhance the legitimacy of the ECtHR, since ‘questions of legitimacy
arguably relate not just to what is decided, but also to the question of who should
decide and why.’8 Clear justification and predictability are necessary qualities in a
rule of law.9 When judges follow a distinct methodology for applying deference,
they have to demonstrate their reasons precisely, which increases the transparency
of their actions and promotes a ‘culture of justification.’10 Consequently, the
employment of a distinct methodology to explicitly justify the intensity of
the courts’ review and a possible deferential practice is evidently beneficial to the
Court and to the rule of law in general.
Notwithstanding all the criticisms regarding its application, the margin of
appreciation is still an important instrument worth applying. Courts rarely have
such a specific framework to decide upon the intensity of their review. Usually,
they place a stronger focus on the way they can express deference than on
justifying their choice of the intensity of scrutiny.11 To put an end to its
inconsistent application and the legitimacy issues it may arise, I suggest in
this paper a better way to determine the margin of appreciation. Courts
might have different approaches for determining the intensity of their review.
The margin could be the straightforward way with which the ECtHR deter-
mines the intensity of its review. Being deference the expression of light in-
tensity of review, to properly know when to act deferentially demands a
clear procedure to determine the intensity of review. Deference should be seen,
thus, as a consequence of the application of the margin (and not something
prior to it).

7 See Gerards (n 1) 506.

8 Dan Priel, ‘The Place of Legitimacy in Legal Theory’ (2011) 57(1) McGill Law Journal 1, 25.
9 On reason-giving and the rule of law, see, eg, Moshe Cohen-Eliya and Iddo Porat, ‘Propor-
tionality and justification’ (2014) 64(3) University of Toronto Law Journal 458; David Dyzenhaus,
‘Proportionality and Deference in a Culture of Justification’ in Grant Huscroft, Bradley W Miller and
Grégoire C N Webber (eds), Proportionality and the rule of law: Rights, justification, reasoning
(Cambridge University Press 2014); Matthias Klatt, ‘The Rule of Dual-Natured Law’ in E T Feteris
and others (eds), Legal argumentation and the rule of law (Eleven International Publishing 2016).
10 See Alison L Young, ‘In Defense of Due Deference’ (2009) 72(4) The Modern Law Review 554,
576–577.
11 See, eg, Frederick Schauer, ‘Ashwander Revisited’ (1995) The Supreme Court Review 71, 97;
Matthias Klatt, ‘Positive rights: Who decides? Judicial review in balance’ (2015) 13(2) International
Journal of Constitutional Law 354, 373.
4 C A Chagas

To structure the deferential practices at the ECtHR, I propose to merge

the formal balancing method with the margin’s framework. Balancing as a
method has been broadly applied by different jurisdictions, including the
ECtHR, as part of the proportionality test to solve fundamental/human rights
conflicts.12 However, this method can also be used to solve jurisdictional con-
flicts, as I will show. Here, I follow Alexy’s theory of balancing and the studies
derived from it that culminated in the idea of ‘balancing competences.’ In sum,
formal balancing can reconstruct the conflicts of competences behind the
application of the margin and thus rationally structure the reasoning present in
its application.
My approach in this paper is mainly a normative one. I present how the
practice of the margin of appreciation could be improved once a structured
method is added to it (ie, formal balancing). Therefore, the fact that, in practice,
the ECtHR not always indicates the reasons why it is acting deferentially is of less
concern here.13 A descriptive part involving the Court’s case law is also present,
nonetheless, to illustrate the current inconsistencies in the margin’s practice
and what could be improved. I start by introducing some of the main practical
problems with the application of the margin of appreciation (2). Next, I describe
how the formal balancing method can be used to determine the intensity of
review by courts (3). Then, I demonstrate how the balancing method can
improve the application of the margin of appreciation by addressing its
main criticisms and applying it in a case (4). Lastly, I finish my argument by
presenting the advantages of using formal balancing within the application of
the margin (5).

12 On Balancing as part of the principle of proportionality, see, eg, Robert Alexy, ‘Balancing,
constitutional review, and representation’ (2005) 3(4) International Journal of Constitutional
Law 572. On the broad application of proportionality world-wide, see, eg, Alec Stone
Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47
Colum J Transnat’l L 72. I would also like to highlight here that the adjudication of human
rights sets the ECtHR in close relation to constitutional courts, though they are not the same.
As Fahner explains, ‘the review exercised by the human rights courts concerns the legitimacy
of state conduct in a broad, constitutional sense, which sets them apart from other interna-
tional adjudicators,’ while, at the same time, they have to observe the principle of subsidiarity.
Their role is, thus, complementary to domestic judicial review, ‘preventing domestic ex-
cesses of power that would jeopardise the constitutional legitimacy of state power’ – Fahner
(n 2) 208.
13 See, eg, Fahner (n 2) 45–47; Gerards (n 4) 106.
 Balancing Competences and the Margin of Appreciation 5

2 The Margin of Appreciation: The Inconsistent

Practice
The margin of appreciation has been characterized as an inconsistent instrument
whose practice lacks uniformity.14 Notwithstanding criticisms towards this incon-
sistent practice, the margin of appreciation has been applied following certain
recurrent features, guiding the ECtHR as it exercises deference (eg, by the use of
factors that could guide the court to a narrow or wide margin),15 which is not as
common in other courts. As described by Delaney, ‘[t]he ECtHR’s use of the margin of
appreciation provides an insight into how candid avoidance works: the margin of
appreciation is an open acknowledgment of the limits of judicial power.’16
Although it might suffer other normative criticism against its nature,17 the
margin follows basic rational components for its application that, if improved, could
provide a clear framework for judicial deference in the ECtHR. In this regard, I take as
a premise that the margin of appreciation is considered an important instrument by
the ECtHR and focus on improving its practical application.
Before one speaks of improvement, it is necessary to point out what needs to be
improved. Gerards has already summarized some of the main critical arguments
against the practice of the margin of appreciation, ie, uncertainty regarding the func-
tion, the scope, and the consequences of the margin.18 I will address these problems
and highlight where there could be changes for a more consistent practice (2.1). Sub-
sequently, I will analyze some of these problems more closely in one specific case (2.2).

2.1 Practical Problems of the Margin of Appreciation

2.1.1 Function

Until now, the ECtHR has not clearly manifested the main function of the margin of
appreciation. Consequently, it is not unusual to see it being applied not only as ‘an

14 See, eg, Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4) 106;
Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of
Human Rights’ (n 1) 500; Arnardóttir (n 6) 37; Fahner (n 2) 36.
15 See Gerards (n 4) 114; Follesdal (n 3) 362.
16 Erin F Delaney, ‘Analyzing Avoidance: Judicial Strategy in Comparative Perspective’ (2016)
66(1) Duke Law Journal 1, 62.
17 For some of those arguments, see, eg, Legg (n 2) Chapter 3.
18 According to Gerards, these are the three main aspects of the Court’s application that
create a ‘gap between the normative ideal and the Court’s practice.’ See Gerards (n 1) 500.
6 C A Chagas

indicator for the amount of deference the Court will pay to the national authorities,’
but also, for instance, as part of the proportionality test.19
This uncertainty has led some scholars to proclaim that the margin has a dual
nature. Letsas refers to the substantive and the structural concepts of the margin of
appreciation. According to him, the substantive concept ‘addresses the relation
between fundamental freedoms and collective goals, under an ideal theory of
political morality.’20 Contrastingly, the structural concept is used to balance the
power of the Court against the power held by the national authorities.21 Arnardóttir
has taken a similar approach, proposing a dual justification to the margin of
appreciation: a functional one and a normative one. The former would allow for a
‘systemic distribution of competences between decision making bodies,’ while the
latter would allow ‘pluralism and flexibility in the interpretation and application of
rights.’22
The consistency and clarity of the margin of appreciation can improve if its
function would become singular. I believe it should be solely related to assigning
the proper intensity of review to the case. In other words, it should assist the Court
on whether to exercise deference or not in a case, depending on the intensity of
review. The margin of appreciation should only be related to deference purposes
and not the purposes of settling the merits of the case. In fact, a closer examination
of Letsas’ theory would indicate that he believes the structural feature of the
margin predominates to some extent over the substantive one. He states that the
substantive concept of the margin cannot really settle the question of interference
with rights, making the ‘[r]eferences to the doctrine in particular judgments (…)
either superfluous or question begging.’23 At the same time, the structural concept
is seen as a due exercise of deference, in compliance with the principle of
subsidiarity.24

2.1.2 Scope

The second criticism related to the exercise of the margin of appreciation is the lack
of a uniform approach regarding how it is applied. The margin has been widely
applied as a merely rhetorical tool.25 It is not uncommon for the Court to admit the
existence of ‘a certain margin of appreciation’ for the States, but not to elaborate

19 Ibid 7; see also Gerards (n 4) 107.

20 Letsas (n 3) 709.
21 Ibid 721.
22 Arnardóttir (n 6) 42.
23 Letsas (n 3) 714.
24 Ibid 722.
25 Gerards (n 1) 502.
 Balancing Competences and the Margin of Appreciation 7

further on it, or to only mention the margin at the end of its reasoning.26 Moreover,
it is not very clear when the ECtHR assigns a narrow or a wide margin, and it seldom
provides a clear justification for doing so.27 According to Brems, ‘[v]ery often (…)
the reference to the margin of appreciation is extremely short, using standard
expressions such as “notwithstanding the state’s margin of appreciation” or
“having regard to the domestic margin of appreciation.”’28
It is not the unclear scope alone (whether narrow or wide) that is a problem.
Determining how this scope is achieved also presents difficulties. Even though
some constant factors are being applied to determine the margin of appreciation,
they are not applied consistently.29 The Court frequently refers to only one of the
many relevant factors or refrains from explaining why factors that point in a
specific direction have trumped the ones pointing in another direction.30 Thus, it is
unsure how these factors work together and how the Court should proceed when
they are pulling in different directions. For a better deferential practice, not only
the decision for a scope but how the Court arrived at it should be more transparent.

2.1.3 Consequences or Standards of Review

Lastly, the ECtHR’s application of the margin of appreciation has also been criti-
cized for the lack of clarity regarding the consequences of the intensity of review
determined by the margin, ie, which standards of review are attached to each
depth of the margin. It is not uncommon for the Court to state the use of a wide
scope but end up undergoing a strict review, and vice-versa.31 This approach
renders it rather difficult for the Court’s decisions to be made with legal certainty
and predictability.
In general, courts have multiple options which they can use to assign light or
more strict scrutiny in a case. For instance, a light intensity of review could
culminate in courts conducting a purely procedural review. Or, they could make a

26 For some recent examples, see Evers v Germany App no 17895/14 (ECtHR, 28 May 2020), para
86; Pormes v The Netherlands App no 25402/14 (ECtHR, 28 July 2020), para 54; Doroz v Poland App
no 71205/11 (ECtHR, 29 October 2020), para 24; Makhmudova v Russia App no 61984/17 (ECtHR, 1
December 2020), para 62. For more examples, see Ibid 6–7.
27 See, eg, Balaskas v Greece App no 73087/17 (ECtHR, 5 November 2020), para 42; OOO Regnum v
Russia App no 22649/08 (ECtHR, 8 September 2020), para 59. For more examples, see Ibid 8; Brems
(n 1) 255.
28 Brems (n 1) 256.
29 Ibid 256; Gerards (n 4) 106.
30 See Gerards (n 1) 503.
31 For an example of citing a narrow scope and the application of semiprocedural review, see N S v
Croatia App no 36908/13 (ECtHR, 13 September 2020), para 94 et seqq. For other examples, see, eg,
Ibid 10–11; Gerards (n 4) 106.
8 C A Chagas

more lenient assessment of one of the steps in the proportionality test.32 In the case
of the ECtHR, no uniform approach has been taken to the outcomes attached to
the different intensities of review so far.33 On the one hand, the Court has
been consistent in applying a full proportionality test, and this approach can be
interpreted as an exercise of strong scrutiny.34 On the other hand, it is also true
that the Court has been applying different procedural approaches.35 However, the
correlation between these approaches and the margin’s scope is still unclear.36 The
fact that determining the scope in the first place is still uncertain might be one of
the reasons why the possible standards of review are also imprecise.

2.2 The ‘Animal Defenders’ Example

For a more in-depth analysis of the margin’s practice, I have chosen one specific
example: The Animal Defenders case.37 This case has been widely cited and
analyzed in the literature due to the ECtHR’s explicit formulation of a connection
between the margin of appreciation and the quality of the decision-making by the
national authority.38 However, the application of the margin is unclear, illustrating

32 See Leonie M Huijbers, Process-based fundamental rights review: Practice, concept, and theory
(Human rights research series volume 88, Intersentia 2019) 382 et seqq.
33 Janneke Gerards, ‘Procedural Review by the ECtHR: A Typology’ in Janneke Gerards and Eva
Brems (eds), Procedural review in European fundamental rights cases (Cambridge University Press
2017) 156.
34 See, eg, Oddný M Arnardóttir, ‘Organized Retreat? The Move from ‘Substantive’ to ‘Procedural’
Review in the ECtHR’s Case Law on the Margin of Appreciation’ (2015) 5(4) ESIL Conference Paper
Series 1, 4. For some examples of these cases see also Gerards (n 33) 151.
35 On the procedural approach at the ECtHR, see, eg, Oddný M Arnardóttir, ‘The Brighton
Aftermath and the Changing Role of the European Court of Human Rights’ (2018) 9(2) Journal of
International Dispute Settlement 223; Janneke Gerards and Eva Brems (eds), Procedural review in
European fundamental rights cases (Cambridge University Press 2017); Patricia Popelier and
Catherine Van de Heyning, ‘Subsidiarity Post-Brighton: Procedural Rationality as Answer?’ (2017)
30(1) Leiden Journal of International Law 5.
36 See, eg, Gerards (n 33).
37 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013).
38 See, eg, Patricia Popelier, ‘Procedural Rationality Review after Animal Defenders Interna-
tional: A Constructively Critical Approach’ (2019) 15(2) European Constitutional Law Review 272,
284; Patricia Popelier and Catherine Van de Heyning, ‘Procedural Rationality: Giving Teeth to the
Proportionality Analysis’ (2013) 9(2) European Constitutional Law Review 230; Popelier and Van de
Heyning; Tom Lewis, ‘Animal Defenders International v United Kingdom: Sensible Dialogue or a
Bad Case of Strasbourg Jitters?’ (2014) 77(3) The Modern Law Review 460; R Spano, ‘Universality or
Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14(3) Human Rights Law
Review 487, 498; Oddný M Arnardóttir, ‘The “procedural turn” under the European Convention on
 Balancing Competences and the Margin of Appreciation 9

the deficiencies brought up here. It is an interesting example, especially because it

shows the imprecise use of factors to determine the margin of appreciation and the
confusing consequence of the margin (ie, a narrow margin with a procedural
approach of the Court).
The Animal Defenders case is based on the allegation of violation of Art 10
(Freedom of Expression) ECHR, regarding a statutory prohibition of paid political
advertising on radio and television. The case was brought to the ECtHR after one of
the TV campaigns from Animal Defenders International (a non-governmental
agency) was banned by the Broadcast Advertising Clearance Centre in the United
Kingdom and its attempts to have this administrative decision revoked in the
national courts (both the High Court and the House of Lords) were dismissed.39
The ECtHR decided that the margin accorded to the State would be a narrow
one after analyzing two relevant factors.40 The first one was the type of expression
at issue whereby the Court concluded that ‘there is little scope under Article 10 § 2
for restrictions on debates on questions of public interest,’ which is the case of the
subject in place (ie, protection of animals).41 Furthermore, the Court asserted as a
second reason that ‘[t]he margin is also narrowed by the strong interest of a
democratic society in the press exercising its vital role as a public watchdog […]:
freedom of the press and other news media affords the public one of the best means
of discovering and forming an opinion of the ideas and attitudes of political
leaders.’42 In the case, the Court noted that the NGO exercised a ‘public watchdog
role of similar importance to that of the press.’43
Having decided upon the scope of the margin of appreciation, the Court went
on to analyze the merits of the case. Nevertheless, it did not proceed directly to
assessing the proportionality of the measure.44 Even after defining the margin’s
width, the Court still cited three other reasons – during the supposed analysis of
the merits – for acting in a more deferential tone, in clear contrast to the margin
defined earlier.

Human Rights and presumptions of Convention compliance’ (2017) 15(1) International Journal of
Constitutional Law 9; Arnardóttir (n 34); Gerards (n 33).
39 See Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April
2013), ‘The Facts’ section.
40 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013),
para 104.
41 Ibid para 102.
42 Ibid para 102.
43 Ibid para 103.
44 In the Court’s words, ‘whether the reasons adduced to justify the prohibition were both
“relevant” and “sufficient” and thus whether the interference corresponded to a “pressing social
need” and was proportionate to the legitimate aim pursued.’ – Ibid para 105.
10 C A Chagas

The first of these reasons was the quality of the national deliberation of the
issue at stake. The Court not only praised the extensive deliberation and its
quality,45 but also asserted that ‘[t]he quality of the parliamentary and judicial
review of the necessity of the measure is of particular importance in this respect,
including to the operation of the relevant margin of appreciation.’46 This para-
doxical approach was also identified in one of the dissenting opinions of the case,
where the judges stated that ‘[t]he fact that a general measure was enacted in a fair
and careful manner by Parliament does not alter the duty incumbent upon the
Court to apply the established standards that serve for the protection of funda-
mental human rights,’47 in accordance with the narrow margin of appreciation.
The second reason was a ‘better-placed’ argument, which was applied to
‘assess the particular difficulties in safeguarding the democratic order in their
State,’ whereby the Court decided that ‘[t]he State must therefore be accorded some
discretion as regards this country-specific and complex assessment which is of
central relevance to the legislative choices at issue in the present case.’48 The third
and last reason given was the lack of a European consensus between the con-
tracting States regarding how to regulate paid political advertising in broad-
casting, which could speak for a ‘wider margin of appreciation than that normally
afforded to restrictions on expression on matters of public interest.’49
Clearly, these three reasons contributed to the Court’s assessment of the in-
tensity of review since it was not ultimately based on the narrow margin defined
previously.50 Therefore, they should have been addressed during the analysis of
the margin of appreciation in the case.
As seen, the reasoning of the ECtHR while applying the margin of appreciation
lacked precision in explaining the use of all factors and how they influence the
intensity of the Court’s review (eg, it was not clear if they were reasons explaining
the margin or the merits of the case). The impact of such inconsistencies is
perceived even more from the clear mismatch between granting a narrow margin
and not thoroughly analyzing the merits by being deferential to the national
authorities’ interpretations.

45 Ibid paras 114–115.

46 Ibid para 108.
47 Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano, para 9.
48 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013),
para 111.
49 Ibid para 123.
50 In conclusion, the Court asserted that it ‘considers the reasons adduced by the authorities, to
justify the prohibition of the applicant’s advertisement to be relevant and sufficient.’ – Ibid para 125.
 Balancing Competences and the Margin of Appreciation 11

3 The Formal Balancing Method: Solving Conflicts

of Competences
No simple solution could bring an end to all the criticisms and debate surrounding
the margin of appreciation. My aim here, though, is to show that a more structured
application of the margin could set aside most of the practical criticisms against it. I
believe that this structure should come from the formal balancing method,
following Alexy’s principles theory. For this reason, I will explain in this section
how balancing could be applied in deferential practices.
The balancing method often cited in the literature is material balancing, ie, the
last step of the proportionality test. In this step, courts balance the rights and
interests competing in a case to find a solution. The balancing method I propose
here is of a different kind. It is formal balancing, which means that it balances
formal principles and not material ones. For when courts need to decide when to be
deferential, the competing principles at play are competences. In the ECHR, the
competence of the Court is defined as extending ‘to all matters concerning the
interpretation and application of the Convention and the Protocols thereto,’51
allowing it to hear claims of violation of the rights outlined in the Convention.52
Though relevant to interpret the jurisdiction of the Court, the idea of competence
here is broader than jurisdictional issues, focusing on the intensity of review of the
courts. The ECtHR has a competence to review complementary to the ones of the
domestic courts,53 and a way to differentiate to which extent it will complement or
not a domestic decision is through determining its intensity of review. To under-
stand why competences are being balanced, first, I clarify the relationship among
intensity of review, competences, and formal principles (3.1). Then, I explain the
details of the formal balancing method (3.2).

3.1 Intensity of Review, Competences, and Formal Principles

When courts decide whether to exercise deference or not, they assess the intensity
of their review of the case. To act deferentially means exercising a light intensity of
review. Deference is usually measured against the decision of another authority.
This means that reaching a balance between both authorities in question,

51 Art 32 ECHR.
52 Art 33 and 34 ECHR.
53 See further the idea of complementarity of competences in human rights law in Samantha
Besson, ‘Subsidiarity in International Human Rights Law: What is Subsidiary about Human
Rights?’ (2016) 61(1) The American Journal of Jurisprudence 69.
12 C A Chagas

something often common in discussions on judicial review,54 is also present when

deciding to exercise judicial deference.55 Taking the margin example at the ECtHR,
Gerards explains that ‘the Court must steer a careful course between respecting
national values and providing for effective protection of individual fundamental
rights.56 Therefore, determining the intensity of review is part of the process of
resolving a jurisdictional conflict.57
Although this intensity seems related to the case content, its immediate impact
is actually upon the competences. The intensity of review is established by
determining how the competence of one authority relates to the competence of the
other, what Rivers called ‘relative institutional competence.’ The court’s relative
competence, thus, is based on ‘the confidence the court can place in the compe-
tence of the other body.’58 In other words, the greater the confidence in the other
authority’s competence, the lower the court’s competence and, consequently, the
lighter the intensity of review, and vice-versa. Defining the intensity of review
means establishing the degree to which the competence of the court can be
exercised.
The relationship between deference and intensity of review can be clarified
through the formal balancing method, using competence norms as the link.
Deference is the expression of ‘clashing competences,’ and a way to solve this kind
of clash is through balancing. As mentioned above, balancing is applied to solve a
conflictual situation involving principles. Competence norms, like any other
legal norms, can either be rules or principles.59 In case they are principles, they
are considered formal principles (in contrast to material principles, such as
rights).60 Formal principles are related to authoritative commands, whereas
material principles establish substantive legal content.61 The optimization object
of formal principles is legal decisions regardless of their content. Formal principles

54 As claimed by Fahner, ‘[t]he proper balance between the need for meaningful review on the one
hand and an acknowledgment of the expertise and legitimacy of the original decision-maker on
the other is particularly delicate.’ – Fahner (n 2) 16. See, also, 8.
55 See, eg, T R S Allan, ‘Deference, Defiance, and Doctrine: Defining the Limits of Judicial Review’
(2010) 60 University of Toronto Law Journal 41–59, 41; Aileen Kavanagh, ‘Judicial Restraint in the
Pursuit of Justice’ (2010) 60(1) University of Toronto Law Journal 23, 30; Young (n 10) 554.
56 Gerards (n 1) 497.
57 Matthias Klatt, Die praktische Konkordanz von Kompetenzen: Entwickelt anhand der Juris-
diktionskonflikte im europäischen Grundrechtsschutz (Mohr Siebeck 2014), 65.
58 Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) Cam Law J 174,
203.
59 See Klatt (n 57) 158 et seqq.
60 For competence as formal principles, see, eg, Robert Alexy, A Theory of Constitutional Rights
(Oxford University Press 2010), 58 and 424; Klatt (n 57) 158 et seqq.
61 Matthias Klatt, ‘Judicial review and institutional balance’ (2019) Revus, 3.
 Balancing Competences and the Margin of Appreciation 13

require that the authority of norms is optimized.62 As concisely defined by Klatt,

‘formal principles establish who is in charge of deciding upon substantive legal
content.’63
The focus here is placed only on formal principles because they are the type of
legal norms that express the idea of ‘varying degrees of satisfaction,’64 and in-
tensity of review is exercised in different degrees. As explained by Gerards, ‘in-
tensity of review is often thought in terms of a “sliding scale,” ranging from a very
marginal deferential test to very strict or rigorous scrutiny.’65 Competence as
formal principles is, thus, the best way to reconstruct the practice addressed here.
Translating into the principles theory language, while establishing the in-
tensity of review, the competence to review of the court (a formal principle) is
competing with the competence of another authority (another formal principle) to
establish a decision on the merits of the case. In other words, ‘formal principles
establish who is in charge of deciding upon substantive legal content.’66 In the
case of the ECtHR, for example, it is a situation where the competence of the Court
is competing with another competence of one of the authorities of a member state.
It means that to determine how much deference will be given to a certain authority
in a case, it is necessary to assess the degree each competence has in the case and
which competence will prevail. The degree to which each competence will be
exercised can be determined by applying the balancing method. As expresses
Alexy’s Law of Competing Principles:

‘The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must
be the importance of satisfying the other.’67

Deference can be seen, thus, as the product of balancing. The result of a balancing
exercise is one competence having a preference on top of another without
annulling it. Whenever the competence of a court loses preference to the compe-
tence of another authority, the court should exercise a light intensity of review,
which can be translated into judicial deference.

62 Robert Alexy, ‘Formal principles: Some replies to critics’ (2014) 12(3) International Journal of
Constitutional Law 511, 516.
63 Matthias Klatt, ‘Balancing competences: How institutional cosmopolitanism can manage
jurisdictional conflicts’ (2015) 4(02) Glob Con 195, 211.
64 See Alexy (n 60) 47–48.
65 Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4) 88.
66 Klatt (n 63) 211.
67 Alexy (n 60) 102. See also Klatt (n 11) 366.
14 C A Chagas

3.2 The Use of Formal Balancing to Determine the Intensity of

Review

If the intensity of review is connected to competence issues and legal principles, it

should be possible to structure its assessment – and consequently the exercise of
deference – through the same methodology applied to solve the conflict of material
principles, ie, balancing.
Like material principles, formal principles can be balanced. Formal principles
have the same characteristics as material principles, ie, they are also optimization
requirements.68 However, the act of balancing formal principles is still a debatable
subject. Different approaches have been taken, which can be summarized mainly by
distinguishing two groups: the group of scholars who defend that balancing formal
principles is necessarily connected with balancing material principles (Combination
Model) and those who defend that balancing formal principles should be perceived
as an individual and independent balancing process (Separation Model).69
Even though I recognize the relevance of the discussion about which model to
follow, I will not undergo it in this paper. For the purposes here, it is only important
to know that I follow mainly the analysis of Klatt and his theory of institutional
practical concordance, which is representative of the separation model.70 In his
theory, Klatt recognizes that when competences collide, two formal principles also
collide, and it is possible to apply balancing to solve this conflict. Klatt, thus,
defends the possibility of balancing formal principles against each other in a
process that is independent of the material balancing in a case (ie, deciding which
colliding right or interest should have preference).71
The choice for the separation model is justified not only because of its
guarantee of the independence of formal principles but also because of its direct
connection to jurisdictional issues.72 In the versions of the combination model,

68 See, eg, Alexy (n 62) 515 and Martin Borowski, ‘Formelle Prinzipien und Gewichtsformel’ in
Matthias Klatt (ed), Prinzipientheorie und Theorie der Abwägung (Mohr Siebeck 2013) 185 et seqq.
69 For an overview on all the theories involving formal balancing, see Paula Gorzoni, Der ‘margin
of appreciation’ beim Europäischen Gerichtshof für Menschenrechte: Eine prinzipientheoretische
Rekonstruktion (Kieler Rechtswissenschaftliche Abhandlungen (NF), Band 71, 1st edn, Nomos
2019), 2. Teil, III. Spielräume und formelle Prinzipien.
70 See Klatt, Die praktische Konkordanz von Kompetenzen (n 57); Klatt, ‘Judicial review and
institutional balance’ (n 61); and Klatt, ‘Judicial review and institutional balance’ (n 61).
71 For Klatt’s account of formal principles, see mainly Klatt, Die praktische Konkordanz von
Kompetenzen (n 57); Klatt, ‘Balancing competences’ (n 63); and Klatt, ‘Judicial review and insti-
tutional balance’ (n 61).
72 For an example of the application of the combination model at the ECtHR’s jurisdiction, see
Gorzoni (n 69).
 Balancing Competences and the Margin of Appreciation 15

formal principles have been mainly used to provide an answer to moments of

discretion.73 The separation model, in contrast, allows the presentation of a
broader account of competence relations (such as the one demonstrated here).
Consequently, competence matters are treated with the importance they deserve.
The steps for the formal balancing method in Klatt’s separation model are
based on the well-known steps that are applied in material balancing. The three
steps of formal balancing are as follows:

‘The first step consists in establishing the degree of non-satisfaction to a first competence. In
the second step, the importance of satisfying the competing competence is established.
Finally, in the third step it is established whether the importance of satisfying the latter
competence justifies the non-satisfaction of the former.’74

As in the case of balancing material principles, Klatt affirms that a triadic scale
should also be employed to assign a concrete weight to a competence, ie, the
weight of a competence in a given case could be described as light, moderate, or
serious,75 depending on the circumstances. Therefore, ‘depending on the values
assigned to the conflicting competences, the third step of balancing will then
establish a preference for either of the two competences.’76 By taking the ECtHR
example, we have that whenever the competence of the Court has preference to the
competence of a national authority, it means that the intensity of review applied in
the case should be towards a stronger review, thus being against a deferential
approach. In contrast, when the competence of the national authority has priority,
a lighter intensity should be exercised, moving the Court’s control towards a
deferential approach.77
If we consider the argumentative premises of material balancing, the formal
balancing method should also be internally and externally justified.78 In the

73 See, eg, Alexy (n 62); Borowski (n 68); Martin Borowski, ‘Alexys drittes Modell formeller
Prinzipien’ in Martin Borowski, Stanley L Paulson and Jan-Reinard Sieckmann (eds), Rechtsphi-
losophie und Grundrechtstheorie: Robert Alexys System (1st edn, Mohr Siebeck 2017).
74 Klatt, ‘Balancing competences’ (n 63) 213; also in Klatt, ‘Positive rights’ (n 11) 366.
75 For the Weight Formula, the values would be respectively 1, 2, 4. For more details on the Weight
Formula, see Alexy (n 60) 408 et seqq.
76 Klatt, ‘Positive rights’ (n 11) 366.
77 It is also possible that the competences have the same weight in a given case (ie, a balancing
stalemate), which would characterize judicial discretion and authorize the court to choose the
scrutiny it would prefer to follow. On more about balancing and structural discretion, see, eg,
Alexy (n 60) 394; Klatt, Die praktische Konkordanz von Kompetenzen (n 57) 263.
78 According to Alexy’s theory of legal argumentation, legal discourse is concerned about the
justification of legal judgments in two aspects: internal and external. Internal justification is
concerned with the question of whether an opinion follows logically from the premisses adduced
as justifying it. The correctness of these premisses is the subject-matter of external justification.
16 C A Chagas

case of formal balancing, any solution that is proposed to resolve a conflict of

competences and that follows the internal structure provided by the Law of
Formal Balancing is internally justified.79 The external justification, on the other
hand, places a focus on justifying the evaluation of the weights attributed to the
formal principles (competences), and this can only be done by regarding the
specific aspects of the case. As stated by Klatt, ‘external justification depends on
arguments external to the balancing itself, regarding the concrete weight of an
interference with a competence.’80 It is precisely at this point that substantive
elements will play a role in formal balancing. Different factors can influence
the weight of a competence. These factors might be derived from substantive
elements of the merits of the case (eg, type of the right at stake). Hence,
substantive elements do not participate directly in the internal justification (ie, in
the Law of Formal Balancing) but in the external justification. To assess the
weight of each competence, all relevant factors must be taken into consider-
ation.81 Relevant factors are all argument types present in a certain jurisdiction
that are relevant to the justification of the preference relations between the
conflicting competences.82
Balancing orderly steps and its precise use of the factors work as a skeleton
that can be applied to the margin of appreciation. Therefore, the formal balancing
method is categorically a capable method to structure the exercise of deference by
clarifying the intensity of review assessment.

4 Structuring Deference at the ECtHR

Once in the knowledge of the main premises of formal balancing, it is time to see
how this method can be applied at the ECtHR’s use of the margin of appreciation.
I explain now how adding the structure of formal balancing to the margin
improves its application in each of the practical problems raised above (4.1). In
the end, I also demonstrate the improvements in the reasoning of the Animal
Defenders case (4.2).

Robert Alexy, A Theory of Legal Argumentation: The theory of rational discourse as theory of legal
justification (Oxford University Press 2010) 221 et seqq.
79 Klatt, ‘Balancing competences’ (n 63) 213–214.
80 Ibid 214.
81 See Ibid 217; Alexy (n 78) 250.
82 See Klatt, Die praktische Konkordanz von Kompetenzen (n 57) 223.
 Balancing Competences and the Margin of Appreciation 17

4.1 Improving the Function, Scope, and Consequences

By applying the formal balancing method, the ECtHR explicitly demonstrates how
the margin of appreciation can be used to define the intensity of the Court’s review,
advancing a more straightforward function of the margin. The Court should
establish the intensity of review through balancing the competing competences of
the authorities at play (in this scenario, these are the competences of the ECtHR
and of another national authority). Deference is seen then as a possible result of
this balancing, ie, whenever the intensity of review is towards a lighter one. As we
have seen above, this happens whenever the competence of the Court does not
prevail.
At the same time, the formal balancing method applied here, even though it
adheres to the separation thesis,83 also has the potential to impact the substantive
assessment of the case, which would explain the connection of the margin with the
merits of the case. The result of the formal balancing should be seen in the way the
merits will be. For instance, a light intensity of review will demand a deferential
approach, which can be translated into more leeway on the interpretation of the
steps of the proportionality test, such as suitability and necessity. Therefore, the
fact that the margin of appreciation should have only one specific function, which
is related to determining the intensity of review, does not mean that it will not
influence the merits of the case. In other words, the margin’s main function should
not be to impose the proper balance between the rights and interests at stake but to
influence such an assessment by determining the proper intensity of review for the
case.
The formal balancing method brings clarity to the margin of appreciation
function when supplying a structured methodology to determine the intensity of
review. Under these circumstances, the Court’s reasoning can be improved when
expressly justifying what it is doing in each step, ie, when assessing its intensity of
review and when deciding the merits.
Formal balancing could also be advantageous here to properly define the
margin’s scope. The balancing method explains that the scope should reflect the
balance between the competences at stake and not among different factors.84 For
instance, the less it is important to preserve the competence of the Court, the lighter
the intensity of review will be. On the other hand, the more important it is to
preserve the competence of the Court, the stronger the intensity of review will be.
Therefore, defining the proper intensity will depend on how much weaker or

83 See Section 3.2.

84 See Section 3.2.
18 C A Chagas

stronger the Court’s competence is in relation to the national authority’s compe-

tence in the case.
The factors should be applied precisely to justify the weights of these com-
petences. They do not balance against each other; the competences that balance
against each other. The factors are relevant to assign a weight to each competence
in a justified way. It is also important to remember that none of the factors should
be seen as determinative; on the contrary, all of them must be taken into consid-
eration during the Court’s assessment. For instance, a very important right in a case
might justify a heavier weight to the competence of the Court and, therefore,
endorse a narrower margin of appreciation. Nonetheless, it is still possible that
cases with very important rights will end up with a wide margin, depending on how
the other factors influence the weight of the competences at stake. Along these
lines, the Court must duly justify its decision based on all the circumstances of the
case and not only those that it chooses to be the most important.
Hence, the formal balancing method not only provides the Court a specific
function for the margin of appreciation but also a more effective structure to the
margin’s scope. It introduces precise steps regarding how to apply the factors and
how to achieve the intensity of review. Clarity at this point prevents the Court from
being accused of bias towards one or another factor or of arbitrariness regarding its
choice of scrutiny.
Lastly, formal balancing also brings a positive influence on the consequences
of the margin. It appears as though defining the possible outcomes is not really a
matter of applying a proper methodology but of having a consistent approach in
the case law for each scope of the margin. Nonetheless, the formal balancing
method positively influences this problem too. Once the explicit structure of
balancing is applied, a clear scope to the margin of appreciation can be found. It
should be easier, then, for the Court to choose distinct scrutiny approaches based
on a clear scope. In other words, a precise process for determining and justifying a
specific intensity of review will provide more transparent results.
Consequently, once the Court has clear results and can properly justify how it
got them, it can also determine how it is going to accurately express these results
on the case. With such a rational chain of argumentation, it gets easier to repro-
duce these choices in the future and to keep a consistent approach in similar cases.
For example, this provides an opportunity to clarify the relationship between the
procedural review approach (sometimes exercised by the Court) and the margin of
appreciation and to strengthen the use of this approach. Such a relationship is still
not very clear.85 Sometimes, the procedural approach is portrayed as somehow
relevant for determining the width of the margin of appreciation; at other times, it

85 See, eg, Gerards, ‘Procedural Review by the ECtHR’ (n 33) 159; and Arnardóttir (n 38) 13–14.
 Balancing Competences and the Margin of Appreciation 19

is interpreted as the result of a wide margin. Looking through the balancing lens,
one could see that the quality of the decision-making (a procedural aspect) could
be considered a factor in the balancing exercise, while the balancing result that
produces a wide margin could result in a (semi-) procedural review.

4.2 Applying the Balancing Method

Going back to the Animal Defenders case, we will see the impact of these
improvements in a case. A structured methodology, such as formal balancing,
would prevent the non-systematized application of factors and, thus, better justify
the application of a certain level of scrutiny in the case. If we apply the formal
balancing methodology, it is necessary to analyze which competence has a higher
preference in the case (ie, the competence of the ECtHR or the UK Parliament). As
seen above, all relevant factors must be taken into consideration to assess the
weight of each competence.86
In the Animal Defenders case, the Court based its decision for a narrow
margin basically on one single factor, ie, the importance of the human right at
stake (in the Court’s words, ‘the type of expression at issue and the exercise by the
press of its public watchdog role’). However, as depicted above, the Court ends up
using other elements in its reasoning (ie, subsidiarity, quality of the decision-
making, and consensus), which influenced a final standard of review that did not
match the pre-defined narrow margin. In the end, to determine whether the
interference was ‘necessary in a democratic society,’87 the Court acknowledged
the references made by the national authorities (both from the enactment of the
relevant legislation and during the national courts’ proceedings) to its case law,88
even stating that it ‘attaches considerable weight to these exacting and pertinent
reviews, by both parliamentary and judicial bodies.’89 The Court, however,
should have gone one step forward at this stage and also checked whether the
main standards for these types of cases were met by those authorities. By failing
to provide a deeper analysis at this point, the Court already granted a high level of

86 See (n 78). For an overview on the literature that address some of the main factors at the ECtHR,
see, eg, Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4); Popelier
(n 38); Gerards and Brems (n 35); Klatt, Die praktische Konkordanz von Kompetenzen (n 57) 224
et seqq.
87 Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013),
para 78.
88 See Ibid paras 114–115.
89 See Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April
2013), para 116.
20 C A Chagas

deference to the national authorities without this having been justified by any
intensity of review analysis.
To analyze how this decision would be like if applied the formal balancing
method, I will assess each applied factor and how they influence the competences
at stake (in this case, the competence of the UK parliament and the competence of
the ECtHR).
The first factor was the importance of the human right at stake.90 This factor
addresses the relevance of safeguarding the freedom of expression and its exercise.
Due to the importance of this right to democracy, one could notice that this factor
provides a heavier weight to the competence of the Court, as an important insti-
tution to review the decisions from other authorities (result: serious weight).
Nonetheless, it does not negatively impact the competence of the domestic
parliament, also an essential institution in a democracy (result: moderate weight).
The second factor was the subsidiarity factor, which was approached when the
Court explained its ‘better-placed’ argument. In the case, the Court defended that
the national authorities were better placed to define how to safeguard democracy
in its own State. For that reason, this particular factor indicates that more weight
was assigned to the competence of the UK Parliament (result: serious weight) than
the Court (result: light weight)
The quality of the decision-making was the third factor addressed by the Court,
which was done emphatically. This factor was assessed when the Court high-
lighted the quality of the deliberation to enact the statute in question, which even
took into consideration its case law. Therefore, this factor also indicates that more
weight was assigned to the competence of the UK Parliament (result: serious
weight). However, it does not diminish the competence of the Court (result:
moderate weight).
Lastly, the consensus factor91 was also explained as a factor providing a strong
weight to the competence of the UK Parliament (result: serious weight) but not to
the Court (result: light weight). The Court pointed out the absence of a European

90 Beyond being a frequent factor applied by the Court, the importance of the right is also
normatively relevant. With this factor, the Court can also justify and develop its theory of human
rights, regarding, for example, which limitation to a right should be strongly justified and why.
See, eg, on the typology of the Convention Rights Janneke Gerards, General principles of the
European Convention on Human Rights law (Cambridge University Press 2019) 19 et seqq.
91 I am aware that the use of consensus as a factor has been largely debatable in the literature.
However, I decided to preserve the Court’s reasoning while reconstructing the arguments of the
case. For some critical views on the use of consensus by the ECtHR, see, eg, Follesdal (n 3); Shai
Dothan, ‘Judicial Deference Allows European Consensus to Emerge’ (2018) 18(2) Chicago Journal of
International Law 393.
 Balancing Competences and the Margin of Appreciation 21

consensus regarding how to regulate paid political advertising in broadcasting,

leaving more room for the national authorities to come up with their own answers.
Overall, we may conclude that the majority of the factors point in the direction
of providing a heavier weight to the competence of the UK Parliament than to the
one of the ECtHR. In the form of the Weight Formula, this argumentation would
look as follows:92
Cc : 4 × 1 × 2 × 1 = 8 = 1
Wc, p =
Cp : 2 × 4 × 4 × 4 24 3
In this case, results above 1 would indicate the prevalence of the competence of the
Court; below 1, the preference would be of the domestic parliament. According to
the Law of formal balancing,93 after analyzing the degree of non-satisfaction of the
competence of the UK Parliament and the importance of satisfying the ECtHR’s
competence, the strong satisfaction of the latter competence was not justified,
according to the Court’s reasoning. In other words, we should conclude that the
preference given to the UK Parliament’s competence in the Animal Defenders case
would result in a light intensity of review pointing to a wide margin of apprecia-
tion, thus providing a clear justification for a deferential approach.
As mentioned above, the Court decided for a narrow margin but ended up
following a deferential approach, nonetheless. The discrepancy between the
application of the margin and the scrutiny adopted by the Court was also
mentioned in one of the dissenting opinions, in which the judges argued that, by
establishing a narrow margin, ‘nothing justifies a departure from the well-
established methodology of proportionality analysis.’94
The current analysis of the margin of appreciation, conducted based on the
balancing method, indicates that the Court should have decided for a wide margin
if a light intensity of review was defined. The results of this wide margin could
mean taking a similar approach to the one given by the Court in the present case,
ie, reviewing the proportionality analysis through the lens of the national
authorities’ scrutiny.
In this regard, the final decision that would be made in the present case if
applied the balancing method could be something similar to what we already see
in the actual decision. Nonetheless, the advantage of such a method is evident.
Balancing not only can be used to organize the arguments of the Court into a clear
order and with a clear structure (especially regarding the use of the factors), but it

92 In this simple version, Wc,p is the concrete weight of the formal principle representing the
competence of the ECtHR (Cc) in relation to the formal principle representing the competence of
the domestic parliament (Cp).
93 See (n 71).
94 Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano, para 3.
22 C A Chagas

also highlights precisely the need to justify any deferential approach that the Court
might take.

5 The Advantages of Formal Balancing

Formal balancing is a good method for structuring the assessment of the intensity
of review in courts. Such a clear structure could be added to the margin of
appreciation for the same purposes. Besides providing a structured way to deal
with the intensity of review, the formal balancing method also has two additional
advantages that should advance its application. First, it has similar characteristics
to the margin of appreciation. In this respect, merging the structured method of
balancing with the margin would not entail completely replacing the margin and
its current aspects. Second, the structure of balancing demands justification and
transparency, which improves the quality of the reasoning.
Starting with the first advantage, the main characteristics of the margin of
appreciation coincide with those present in the balancing method. Even though
the margin of appreciation has not been applied in exactly the same manner in all
cases,95 its application has at least two main common features.
The first common feature is the similarity between the margin of appreciation
and the idea of flexibility.96 The ECtHR might assign a narrow or a wide margin
of appreciation to a national authority, for example. There are, thus, different
intensities of review that are related to the application of the margin of apprecia-
tion.97 Deference is just one spectrum of the courts’ review, depending on how they
balance their roles in a case.
Scholars have also cited that different factors are used to determine the different
intensities of the margin,98 explaining that ‘(…) the actual amount of deference
granted in a specific case depends on the factors determining the scope of the
margin.’99 The main factors highlighted in the literature include the importance of

95 See, eg, Brems (n 1); Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n
4) 106–107.
96 See Brems (n 1) 313; Dothan (n 91) 400.
97 See, eg, Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European
Court of Human Rights’ (n 1) 499–500; Gerards, ‘Pluralism, Deference and the Margin of Appre-
ciation Doctrine’ (n 4) 101; Janneke Gerards, ‘Intensity of Judicial Review in Equal Treatment Cases’
(2004) 51(2) Netherlands International Law Review 135, 140.
98 See Brems (n 1); Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4);
Gerards, ‘Intensity of Judicial Review in Equal Treatment Cases’ (n 97); Follesdal (n 3); Legg (n 2)
58.
99 Fahner (n 2) 40.
 Balancing Competences and the Margin of Appreciation 23

the right in question, the existence of uncertainty related to the subject, and whether
one authority is better placed to solve the matter than another.100
The second common feature of the margin of appreciation is that the Court
needs to assess the case in question in order to grant the correct margin to the
national authorities. Ergo, case dependency is also an important feature of the
margin of appreciation. The relevant factors for determining the width of
the margin are analyzed through the lens of a specific case.101 Even when not
talking explicitly about factors, a margin of appreciation is usually granted to
States not because of which State it is but because the Court believes that the
specificities of the case indicate such choice.102 In sum, the ECtHR has two main
elements in the exercise of the margin of appreciation: different intensities with the
application of different factors and case dependency.
Remarkable here is how these characteristics are also very similar to those of
the balancing method. Balancing is also based on the beforementioned features of
case-dependency and the matter of degree (flexibility), making it a perfect method
to structure the exercise of deference without replacing the main elements of
the margin. The balancing method is applied to find a solution for when legal
principles compete, ie, to ‘optimize’ the requirements of the principles at play.103
According to Alexy, principles are ‘characterized by the fact that they can be
satisfied to varying degrees, and that the appropriate degree of satisfaction de-
pends not only on what is factually possible but also on what is legally possible.’104
Moreover, ‘principles have different weights in different cases and (…) the more
important principle on the facts of the case takes precedence.’105 Therefore, it is
clear that both the nature of legal principles and the way balancing should be
applied to solve a situation of competing principles in a case include the notions,
respectively, of a matter of degree and case dependency.
Additionally, by performing balancing, none of the competences are
completely pushed away, which could be easily related to the function of
the margin of appreciation. In Brems’ description, the margin of appreciation
‘provides an elegant solution for the tension existing in a supranational judicial
system between national and European legal rules, so that it is not necessary
to completely subordinate one to the other.’106 A competence will prevail for a

100 See, eg, Brems (n 1) 256 et seqq; Gerards, ‘Pluralism, Deference and the Margin of Appreci-
ation Doctrine’ (n 4) 109 et seqq.
101 Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (n 4) 109 et seqq.
102 See, eg, Brems (n 1) 241.
103 Alexy (n 12) 573.
104 Alexy (n 60) 47–48.
105 Ibid 50.
106 Brems (n 1) 313.
24 C A Chagas

specific set of circumstances in a specific case. There is no general preference to the

competence of the Court or the States. According to Besson, this is precisely one of
the functions of the principle of subsidiarity in human rights law, ie, establishing
complementarity of review powers.107 Human rights subsidiarity recognizes that
both courts are competent to review, but that ‘international human rights in-
stitutions exercise their competence to review only once domestic remedies have
been exhausted (…) and only to a limited degree and scope.’108 Formal balancing,
as a method, can help to strike a balance between both competences and express
more clearly the degree and scope of a review.
However, the usefulness of balancing when courts exercise deference
appears beyond its structural compatibility with the main features of the margin.
Balancing brings advantages also in terms of justification and transparency, as
already defended in the literature. Stone Sweet and Mathews, for example, claim
that a court that applies balancing is more honest. According to them, balancing
would make it clear that each side of the conflict claims a constitutionally
legitimate norm; that both conflicting interests are held in equally high esteem;
and that determining which value should prevail is not simply a mechanical
exercise.109 In other words, balancing advances all elements needed to reach a
decision.
In a similar approach, Barak asserted that with proportionality – and the act of
balancing as part of it – ‘the process of judicial decision-making becomes open to
the reader. The reasons at the decision’s foundation are provided, as well as their
relative weight. Thus, those decisions are better explained and understood.
Moreover, it becomes much easier to properly criticize those decisions.’110
According to him, balancing is related to transparency, and transparency ‘is a
major contribution to the notion of fairness and integrity in the decision-making
process.’111 Therefore, balancing can be used as a method to guide judicial
reasoning in a more accountable approach. It should not be seen as a magical tool
that creates ‘correct’ answers but as an argumentative tool that can be wielded to
improve the legitimacy of a decision. Balancing is as precise as the justification of
the premises applied can be precise.112

107 Besson (n 53) 106.

108 Ibid 93.
109 Stone Sweet and Mathews (n 12) 88.
110 Aharon Barak, Proportionality: Constitutional rights and their limitations (Cambridge studies in
constitutional law, Cambridge University Press 2012) 463.
111 Ibid 463.
112 Matthias Klatt and Moritz Meister, The constitutional structure of proportionality (Oxford
University Press 2012) 58.
 Balancing Competences and the Margin of Appreciation 25

Surely, formal balancing is not a perfect method. Such a method could suffer
general criticisms coming both from theorists of principles theory and from
practitioners, who might think such a method could present extra work for the
Court. As much as it represents an interesting debate, this paper could not
comprehend a thorough analysis of the arguments against the applicability of
formal principles and of balancing per second.113 However, I would like to drop a
few words on the practical feasibility of formal balancing.
Overall, the formal balancing method should not be seen as an argumenta-
tive burden for the Court, as something too complex to be applied all the time.
First, applying formal balancing is not more complex than applying the
proportionality test (since balancing is only one part of it); and this latter is
applied constantly,114 proving that the Court already has experience with it.
Second, connecting the formal balancing method to the margin does not mean
that this method will always be applied. With time, the Court might develop rules
that allow it to deal with similar circumstances, and it will not need to redress
the intensity of review for the same type of cases.115 Consequently, I believe that
the advantages brought here, together with the clear improvements to the
application of the margin, make it a method worth employing for organizing the
deferential practices of the ECtHR.

6 Conclusion
I have demonstrated that applying the formal balancing method is an excellent
way to structure deference and provide a justified application of the margin of
appreciation in the ECtHR’s practice. With the clear structure of balancing, factors
are employed in a more organized manner, and the relationships behind the idea of
determining the intensity of review are explicitly justified. The structure of
balancing goes beyond clarifying the underneath aspects analyzed by the margin
(such as the competing competences in a subsidiary system). It also indicates more
precisely what needs to be justified by the Court in its decisions.

113 For an overall discussion on the advantages and disadvantages of the different models of
formal balancing, see, eg, Borowski (n 73); Gorzoni (n 69). On an overall critic to balancing, see, eg,
S Tsakyrakis, ‘Proportionality: An assault on human rights?’ (2009) 7(3) International Journal of
Constitutional Law 468; Francisco J Urbina Molfino, A critique of proportionality and balancing
(Cambridge University Press 2017).
114 See, eg, Janneke Gerards, ‘How to improve the necessity test of the European Court of Human
Rights’ (2013) 11(2) International Journal of Constitutional Law 466, 466–467; Stone Sweet and
Mathews (n 12) 145 et seqq.
115 See Alexy (n 60) 54; Klatt (n 57) 161.
26 C A Chagas

The notion and structure of balancing competences organize the margin of

appreciation in a way to free it from its main criticisms. In other words, balancing
helps with determining a specific function for the margin of appreciation (ie, to
determine the intensity of review); with clearing out the scope of the margin (eg, by
organizing the application of factors, or clarifying how to determine the different
degrees of scrutiny through the idea of competing principles); and with facilitating
the choices for the consequences of each scope of the margin (ie, predictability
related to determining the different intensities of review helps in the predictability
and consistency of the types of review the Court will apply).
While applying the formal balancing method for determining the margin of
appreciation, three important points need to be taken into consideration. First, it is
necessary to assess the scope of the margin of appreciation before a full appraisal
of the merits of the case can be made. Second, all relevant factors should be applied
at the balancing exercise, and the goal of using these factors is to provide reasons
that justify the weight assigned to the competing competences in the case. It is
important to remember that competences that collide against each other, not the
factors. Furthermore, the idea of applying all relevant factors is related to avoiding
arbitrariness in judicial decisions. Once the Court identifies which are the relevant
factors, it should keep applying them all time, consistently. Third and last, the
Court must provide explicit and consistent outcomes for each of the possible
scopes of the margin, and this is easier to achieve once the margin has been
properly applied and justified.
I have demonstrated with the example of the margin of appreciation at the
ECtHR that deference can be exercised in a more structured way. I hope that, with
this insight of applying formal balancing in jurisdictional matters, the frequent
idea of connecting deference exclusively to courts’ discretion and exempting them
from properly justifying their decisions regarding the degree of scrutiny can be
reassessed.