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<p>This article critically assesses the discretion that the European regional courts leave to the states when translating international norms into domestic law and practice. Human rights indeed leave room for a variety of ways of implementation, thus granting national authorities, including national courts, a degree of freedom when translating international norms in a way that is tailored to the local circumstances. However, the effective protection of fundamental rights requires international courts to adopt a sufficiently elevated level of scrutiny. Early on, the ECtHR granted states a certain margin of appreciation when assessing whether the limitations were proportionate to the legitimate aim invoked. For certain religious issues, the Court even granted a broad margin of appreciation. This, however, implies that the Court adopts a lower level of scrutiny, which risks jeopardising the effective protection of human rights. The article identifies and expands on a range of criticisms of the ECtHR for granting such a margin of appreciation and how it is applied. Over time, the ECtHR has backed away from granting a broad margin regarding certain religion-related matters. However, when it comes to controversial matters on which there is no European consensus, such as those pertaining to headscarves and ritual slaughter, the broad margin of appreciation ‘stands’. The CJEU, for its part, seemed not to follow the ECtHR’s broad margin of appreciation in its early jurisprudence on religious themes, but in several more recent cases concerning manifestations of Islam, it has embraced the broad margin of appreciation as well. The article concludes with a call for the European regional courts to embrace their supervisory role and provide—gradually—more guidance to national authorities and courts, thereby narrowing their margin of appreciation. Put differently, the article urges European regional courts to always provide sufficient guidance for national authorities, so that the latter’s freedom to translate international norms into national norms and practice is suitably circumscribed and the effective protection of the fundamental rights concerned is ensured.</p>

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The Margin of Appreciation for ‘State- Religion Relations’: Critical Reflections on the Jurisprudence of the ECtHR and the CJEU

  • 期刊论文

  • 发表日期：

    2025年6月28日

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  • Kristin Henrard

摘要

This article critically assesses the discretion that the European regional courts leave to the states when translating international norms into domestic law and practice. Human rights indeed leave room for a variety of ways of implementation, thus granting national authorities, including national courts, a degree of freedom when translating international norms in a way that is tailored to the local circumstances. However, the effective protection of fundamental rights requires international courts to adopt a sufficiently elevated level of scrutiny. Early on, the ECtHR granted states a certain margin of appreciation when assessing whether the limitations were proportionate to the legitimate aim invoked. For certain religious issues, the Court even granted a broad margin of appreciation. This, however, implies that the Court adopts a lower level of scrutiny, which risks jeopardising the effective protection of human rights. The article identifies and expands on a range of criticisms of the ECtHR for granting such a margin of appreciation and how it is applied. Over time, the ECtHR has backed away from granting a broad margin regarding certain religion-related matters. However, when it comes to controversial matters on which there is no European consensus, such as those pertaining to headscarves and ritual slaughter, the broad margin of appreciation ‘stands’. The CJEU, for its part, seemed not to follow the ECtHR’s broad margin of appreciation in its early jurisprudence on religious themes, but in several more recent cases concerning manifestations of Islam, it has embraced the broad margin of appreciation as well. The article concludes with a call for the European regional courts to embrace their supervisory role and provide—gradually—more guidance to national authorities and courts, thereby narrowing their margin of appreciation. Put differently, the article urges European regional courts to always provide sufficient guidance for national authorities, so that the latter’s freedom to translate international norms into national norms and practice is suitably circumscribed and the effective protection of the fundamental rights concerned is ensured.