Deference or Proportionality: Two Concepts of Margin of Appreciation in the Strasbourg Court and Their Influences

The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State’s "room for manoeuvre" or "latitude of deference or error." In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as "manifestly unreasonable." In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.