Margins of Appreciation: Changing Contours in Community and Domestic Case Law

Vivien Rose, Apr 30, 2009

This article considers the circumstances in which a court, faced with a challenge to a decision taken by a primary decision-maker, accords a margin of appreciation to that decision-maker by limiting the intensity of its review. It compares the concept of the margin of appreciation as applied by the Community Courts in the application of Article 81 with that of the domestic courts in the United Kingdom when they are dealing with challenges based on directly effective Community rights or alleged breaches of the European Convention on Human Rights. The article examines how discussion of the existence and scope of the margin is influenced by the reviewing court´s perception of its role in administrative challenges more generally and whether the position of a specialist tribunal established to hear a particular kind of case is different from the position of a generalist court.

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