Court of Justice of the European Union and national margin of appreciation: the case of fundamental rights Francisco Javier Mena Parras (ULB & VUB) 12 February 2015

Research objectives The main research objective of the PhD project is to analyse how European courts, and more specifically, the Court of Justice of the European Union, accommodate diversity in the field of protection of fundamental rights through the technique of the national margin of appreciation. More precisely, the research question is to what extent the margin of appreciation can be considered as an optimal tool to regulate divergence at the EU level On the basis of the margin of appreciation doctrine developed by the European Court of Human Rights (towards which a critical approach is adopted), the research aims to provide a systematic and comparative analysis of the use of this technique by the CJEU in the field of fundamental rights One of the main parts of the research focuses on assessing, from a legal theory perspective, the role of the national margin of appreciation in the search of a balance between uniform application of EU law and different constitutional values concerning the protection of fundamental rights, and more largely, on its impact on the relationships between EU law, national constitutional law and the ECHR system

Research until now The research until now has focused on different parts of the PhD project, most importantly (but not only) on the following elements: The doctrine of the margin of appreciation in the ECHR system as a starting point of the research on this technique as an optimal tool to regulate divergence at the European level Roles of the ECtHR and the CJEU, as well as the legal nature of the ECHR system and EU law, with an accent on the EU constitutional architecture of fundamental rights Systematic analysis of the CJEU case-law in the field of fundamental rights mobilizing the notion of margin of appreciation / margin of discretion, and its impact on the relationships between EU law and the national legal orders Study of the existing literature on the different theoretical models concerning the relationships between the different legal orders overlapping at the international level and, more particularly, at the European level

Preliminary findings (non exhaustive) On the analysis of the transposition into EU law of the margin of appreciation concept, and beyond some common elements, there exist important distinct features on the use of this technique by the CJEU, as for example regarding the impact on the scope of the margin of appreciation of factors such as the existence or absence of a European consensus in the field Despite theses differences, there is nonetheless a similar approach when compared to the use of margin of appreciation concept by the Strasbourg court, by the interconnection of the notions of consensus, harmonization and subsidiarity in EU law, which allows to argue that the use of the margin of appreciation by the CJEU can also be considered as a tool to accommodate diversity, in that sense that its use provides a balance between the respect of the EU constituent and legislator choices and those of the national authorities These differences, as well as the similar final consideration of the margin of appreciation as a tool to regulate divergence in both legal orders, are explained by the different legal nature of both legal systems and the different roles of the ECtHR and the CJEU

Users’ perspective Focus on the ECtHR and, most importantly, the CJEU as judicial users Analysis of the research question from the perspective of the functions performed by these courts within a legal space where different legal orders overlap, while considering the importance of respect for diversity in the legal orders in which both courts operate Different roles of the ECtHR (defined as somewhere in between an international court of human rights and a constitutional court) and the CJEU (as a hybrid court performing the functions of a federal constitutional court and a supreme court), according to the different legal nature of the ECHR system and the EU legal order How these different roles are reflected on the use of the margin of appreciation and its consideration as an optimal tool to regulate divergence at the (pan-)European level? Impact of the use of the margin of appreciation as a tool to accommodate diversity on the question of the legitimacy of both courts

The challenge of human rights integration Adoption of a “holistic” perspective, taking into account the different legal orders overlapping at the European level and the impact of the margin of appreciation concept on the relationships between EU law, national constitutional legal orders and the ECHR system From a methodological point of view though, the main research question will not be constructed on the basis of considering both all affected human rights and all relevant human rights norms or mechanisms Quid Integrated approach? Eventually, in the last part of the thesis dealing with the impact of the margin of appreciation technique on the construction of a coherent European area of protection of fundamental rights, a case-study analysis may be introduced on the question on how both European courts modulate or limit the discretion they allow to national authorities considering the other human rights obligations that Member States have, either at the European or the international level

Thank you for your attention