Abstract
The Court of Justice of the EU has dealt with gambling issues as a matter for fundamental freedoms. According to the general case law, Member States can justify restrictions based on the Treaty provisions, in particular public policy, public security and public health. In addition, the Court of Justice has recognised a number of justification grounds in its case law, so-called ‘mandatory requirements’. The differences between the two tracks are explained.
The chapter outlines the Court’s varying practice regarding the principle of proportionality. In non-harmonised areas, the Court regularly leaves it to the Member States to define the protection level of the public interest goal. It often leaves it to the referring court to make final conclusions regarding the proportionality of the measures, yet offers guiding criteria that the national court will have to consider in its suitability and necessity assessments.
The chapter pays special attention to the doctrine of the margin of appreciation, which has played a crucial role in the gambling case law. The chapter presents the doctrine, namely its notion and origin, its relationship to the principles of subsidiarity, judicial review and proportionality, and finally, the reasons for which it is practised. It is shown that the doctrine has been strongly shaped by the European Court of Human Rights. Commonalities and differences between this court and the Court of Justice are discussed. It is explained why the latter is entitled to apply a rather narrower margin of appreciation when confronted with similar justification grounds as the European Court of Human Rights.
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- 1.
In this book, the term ‘Internal Market Courts’ refers to the CJEU and the EFTA Court.
- 2.
The TFEU now mentions in Art. 3(1) the aim “to promote peace, [the Union’s] values and the well-being of its peoples.”
- 3.
Arts 3(3) TEU and 26(1) TFEU.
- 4.
Art. 26(3) TFEU.
- 5.
Art. 34 TFEU: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”
- 6.
Art. 45(1)–(2) TFEU:
“1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.”
- 7.
Art. 49 TFEU: “Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.”
- 8.
Art. 56(1) TFEU: “Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.”
- 9.
Art. 63 TFEU:
“1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.”
- 10.
Arts 45, 52 and 62 TFEU. Art. 62 TFEU renders Arts 51–54 TFEU applicable to the freedom to provide services. As an additional exemption, those freedoms do not apply to functions that require a particular degree of loyalty to the state (cf. Arts 45(3), 51 and 62 TFEU; for an application in the case law, cf. C-149/79 Commission v Belgium [1982] ECR 1845).
- 11.
Art. 65(1) TFEU:
“1. The provisions of Article 63 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.”
- 12.
Art. 36 TFEU.
- 13.
Art. 36 TFEU: “The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
- 14.
C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’) [1979] ECR 649, para. 8.
- 15.
For a detailed discussion of the rule of reason, cf. The Rule of Reason and its Relation to Proportionality and Subsidiarity, The Hogendrop Papers, Schrauwen, A. (Ed.), Groningen: Europa Law Publishing, 2005.
- 16.
C-8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837, para. 5.
- 17.
Emiliou, N., The Principle of Proportionality in European Law – A Comparative Study, The Hague/London/Boston: Kluwer Law International, 1996, at 237.
- 18.
C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, para. 37. Italic emphasis added.
- 19.
C-76/90 Manfred Säger v Dennemeyer & Co. Ltd. [1991] ECR I-4221, para. 15.
- 20.
C-154/89 Commission v France [1991] ECR I-659, para. 15.
- 21.
This point was also noted by Advocate General Mengozzi in his opinion in C-153/08 Commission v Spain [2009] ECR I-9735, paras 80–81.
- 22.
Exceptionally, the CJEU mentioned the Treaty derogations in general terms, however, only to nevertheless assess the measures from the angle of mandatory requirements: cf. e.g. C-64/08 Criminal Proceedings against Ernst Engelmann [2010] ECR I-8219, para. 51; C-176/11 HIT hoteli, igralnice, turizem dd Nova Gorica and HIT LARIX, prirejanje posebnih iger na srečo in turizem dd v Bundesminister für Finanzen [2012] nyr, para. 20. Only were the national measures were found to be discriminatory, the CJEU had to rely on the Treaty derogation: cf. e.g. C-347/09 Criminal Proceedings against Jochen Dickinger and Franz Ömer [2011] ECR I-8185, para. 79; C-153/08 Commission v Spain [2009] ECR I-9735; cf. also the opinion of Advocate General Mengozzi in the latter case who assessed the gambling addiction concerns under the Treaty derogation of ‘public health’ (paras 84 and 94). In C-42/02 Diana Elisabeth Lindman [2003] ECR I-13519, the CJEU did not even discuss the Treaty derogations but simply noted that the justifying reasons needed to be “accompanied by an analysis of the appropriateness and proportionality of the restrictive measure” (para. 25).
- 23.
Art. 18(1) TFEU: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”
- 24.
Discriminatory measures have rarely played a role in the case law on gambling. Cf., however, C-42/02 Diana Elisabeth Lindman [2003] ECR I-13519; C-347/09 Criminal Proceedings against Jochen Dickinger and Franz Ömer [2011] ECR I-8185.
- 25.
C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, para. 37.
- 26.
Opinions of Advocates General Fennelly in C-67/98 Questore di Verona v Diego Zenatti [1999] ECR I-7289, para. 25, and Stix-Hackl in C-42/02 Diana Elisabeth Lindman [2003] ECR I-13519, para. 70, and, ex multis, judgment of the CJEU in C-288/89 Stichting Collectieve Antennevoorziening Gouda et alii v Commissariaat voor de Media [1991] ECR I-4007, para. 11. For a similar statement in a gambling case, cf. C-64/08 Criminal Proceedings against Ernst Engelmann [2010] ECR I-8219, para. 51.
- 27.
C-76/90 Manfred Säger v Dennemeyer & Co. Ltd. [1991] ECR I-4221, para. 12:
“Article [56 TFEU] requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services.”
- 28.
Opinion of Advocate General Jacobs in C-136/00 Rolf Dieter Danner [2002] ECR I-8147, para. 40:
“As to which grounds of justification may be invoked, I think it is inappropriate to have different grounds depending upon whether the measure is discriminatory (directly or indirectly) or whether it involves a non-discriminatory restriction on the provision of services. Once it is accepted that justifications other than those set out in the Treaty may be invoked, there seems no reason to apply one category of justification to discriminatory measures and another category to non-discriminatory restrictions. Certainly the text of the Treaty provides no reason to do so: Article [56 TFEU] does not refer to discrimination but speaks generally of restrictions on freedom to provide services’. In any event, it is difficult to apply rigorously the distinction between (directly or indirectly) discriminatory and non-discriminatory measures. Moreover, there are general interest aims not expressly provided for in the Treaty (e.g. protection of the environment, consumer protection) which may in given circumstances be no less legitimate and no less powerful than those mentioned in the Treaty. The analysis should therefore be based on whether the ground invoked is a legitimate aim of general interest and if so whether the restriction can properly be justified under the principle of proportionality. In any event, the more discriminatory the measure, the more unlikely it is that the measure complies with the principle of proportionality. Such a solution would be consistent with the Court’s implicit approach in most of the recent cases on freedom to provide services. I would add that the same solution may be appropriate for the free movement of goods. That solution would meet the need to give equal weight, when assessing restrictions on the free movement of goods, to interests no less vital that those set out in Article [36 TFEU], notably the protection of the environment.”
- 29.
Timmermans, C. (2006). “Creative Homogeneity” in A European For All Seasons: Liber Amicorum in Honour of Sven Norberg, Johansson, M., Wahl, N., and Bernitz, U. (Eds.), Brussels: Bruylant, pp. 471–484.
- 30.
Confirmed by the CJEU in the gambling case C-64/08 Criminal Proceedings against Ernst Engelmann [2010] ECR I-8219, para. 51.
- 31.
C-54/99 Association Eglise de scientologie de Paris and Scientology International Reserves Trust v The Prime Minister [2000] ECR I-1335, para. 17; cf. in relation to public policy already C-30/77 Régina v Pierre Bouchereau [1977] ECR 1999, para. 35.
- 32.
Chalmers, D., Davies, G., and Monti, G. (2010). European Union Law: Text and Materials, Cambridge University Press, at 902.
- 33.
Ibid., at 70–75. The Court speaks of ‘settled case-law’: C-212/08 Zeturf Ltd v Premier ministre [2011] ECR I-5633, para. 52. For a list of ‘imperative requirements’ recognised in the case law of the CJEU, cf. Swiss Institute of Comparative Law, Study of Gambling Services in the Internal Market of the European Union, Report prepared for the European Commission, available at http://ec.europa.eu/internal_market/services/docs/gambling/study1_en.pdf. 2006, Chap. 2, at 971, i.i.: “Consumer protection, protection of creditors, protection from unfair competition, enforcement of tax laws, functioning of the law, protection of health, environmental protection, media pluralism, important threat to the financial stability of the social security system, traffic security.”
- 34.
C-158/96 Raymond Kohll v Union des Caisses de Maladie [1998] ECR I-1931, paras 50–51. For this point, cf. also the EFTA Court judgment in Rindal in which the risk of seriously undermining the financial balance of the social security system was recognised as an ‘overriding general-interest reason’: E-11/07 and E-1/08 (Joined Cases) Olga Rindal and Therese Slinning, Represented by Legal Guardian Olav Slinning v Norway, Represented by the Board of Exemptions and Appeals for Treatment Abroad [2008] EFTA Court Report 320, para. 55.
- 35.
Art. 5(4) TEU.
- 36.
Emiliou notes that the principle made an early debut already in the jurisprudence relating to the European Coal
and Steel Community: Cf. C-8/55 Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel Community [1956] ECR English special edition 245, and Emiliou, The Principle of Proportionality in European Law – A Comparative Study, at 134.
- 37.
Ex multis, C-562/08 Müller Fleisch GmbH v Land Baden-Württemberg [2010] ECR I-1391, para. 43; Emiliou, The Principle of Proportionality in European Law – A Comparative Study, at 134 et seq. Similarly, proportionality was expressly recognised as a principle of EEA law by the EFTA Court: E-4/04 Pedicel AS v Sosial- og helsedirektoratet [2005] EFTA Court Report 1, para. 56.
- 38.
Harbo, T.-I., The Function of Proportionality Analysis in European Law, Ph.D. Thesis submitted at the EUI, Florence: European University Institute, 2010; Lilli, M., The Principle of Proportionality in EC Law and Its Application in Norwegian Law, LL.M. Thesis submitted at the EUI, Florence: European University Institute, 1997; Pollak, C., Verhältnismässigkeitsprinzip und Grundrechtsschutz in der Judikatur des Europäischen Gerichtshofs und des Österreichischen Verfassungsgerichtshofs, Schriftenreihe Europäisches Recht, Politik und Wirtschaft, Schwarze, J. (Ed.), Baden-Baden: Nomos Verlagsgesellschaft, 1991.
- 39.
Ex multis, cf. the Fedesa case:
“The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued”
(C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa et alii [1990] ECR I-4023, para. 13).
- 40.
Hoffmann, L., “The Influence of the European Principle of Proportionality upon UK Law” in The Principle of Proportionality in the Laws of Europe, Ellis, E. (Ed.), Oxford/Portland: Hart Publishing, 1999, pp. 107–115, at 107; Tridimas, T., “The Rule of Reason and its Relation to Proportionality and Subsidiarity” in Rule of Reason – Rethinking Another Classic of European Legal Doctrine, Schrauwen, A. (Ed.), The Hogendorp Papers, Groningen: European Law Publishing, 2005, at 112.
- 41.
Lord Hoffmann speaks of “the standard tripartite definition used by German writers” and concisely notes the focus on the tripartite structure: “[Academic writers] have seemed much more interested in dissecting the principle [of proportionality] itself and allocating cases to the various categories of suitability, necessity and Verhältnismässigkeit im engeren Sinn than in discussing what seems to me the all-important question of the extent of the margin of appreciation and the grounds upon which it is allowed”
(Hoffmann, “The Influence of the European Principle of Proportionality upon UK Law”, at 107 and 112).
- 42.
Mandatory requirements have been relevant inter alia in the gambling jurisprudence.
- 43.
C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, para. 37.
- 44.
For the former formula, cf. e.g. the de Peijper case: “can [be] as effectively protected by measures which do not restrict intra-Community trade so much” (C-104/75 Adriaan de Peijper, Managing Director of Centrafarm BV [1976] ECR 613, para. 17). For a discussion whether one formula represents a stricter standard than the other, cf. Harbo, The Function of Proportionality Analysis in European Law, at 36–38.
- 45.
C-261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA [1982] ECR 3961, para. 12.
- 46.
C-384/93 Alpine Investments BV v Minister van Financiën [1995] ECR I-1141, para. 51.
- 47.
Opinion of Advocate General Jacobs in ibid., paras 88–90.
- 48.
Concurring: Harbo, The Function of Proportionality Analysis in European Law, at 41.
- 49.
Lilli, The Principle of Proportionality in EC Law and Its Application in Norwegian Law, at. 19; Jans, J. (2000). “Proportionality Revisited”, Legal Issues of Economic Integration, 27(3), 239–265, at 248. According to the latter author, the CJEU proceeds only in exceptional circumstances to a review of the proportionality stricto sensu such as in the case relating to the British Sunday trading legislation: C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q Plc [1992] ECR I-6635.
- 50.
Harbo, The Function of Proportionality Analysis in European Law, at 48.
- 51.
Cf. e.g. Pollak, Verhältnismässigkeitsprinzip und Grundrechtsschutz in der Judikatur des Europäischen Gerichtshofs und des Österreichischen Verfassungsgerichtshofs, at 139. This author mentions the Groener case as an example of a proportionality strito sensu review. Yet, the CJEU hardly reviewed the measure at all. It limited itself to referring to the general formula that “the requirements […] must not […] in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States.” The formula (and the CJEU’s review) only refers to the principle of proportionality in general, not to the specific proportionality stricto sensu test, which would only follow subsequent to an assessment of suitability and necessity (C-379/87 Anita Groener v Minister for Education and the City of Dublin Vocational Educational Committee [1989] ECR 3967, para. 19).
- 52.
Harbo, The Function of Proportionality Analysis in European Law, at. 29.
- 53.
With similar wording, von Danwitz, T. (2003). “Der Grundsatz der Verhältnismässigkeit im Gemeinschaftsrecht”, Europäisches Wirtschafts- und Steuerrecht, 14(9), 393–402.
- 54.
However, where the CJEU considers that it disposes of all necessary facts and a balancing between fundamental freedoms and fundamental rights must be performed, it may engage in a lengthy balancing exercise. Cf. e.g. C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659.
- 55.
With similar wording, Craig, P. (1993). EU Administrative Law, Oxford: Oxford University Press, 2006, at 657; de Burca, G., “The Principle of Proportionality and Its Application in EC Law”, Yearbook of European Law, 13(1), 105–150, at 113. It can already be noted that the standard of scrutiny of national courts may considerably vary from one Member State to another due to different judicial cultures, resulting in different protection levels for market actors. See for this point Sect. 9.3.3.3 i.f.
- 56.
In the case of the EU (EEA) and the CJEU (EFTA Court), one would arguably have to speak of (quasi-)supranational rules and (quasi-)supranational court.
- 57.
Brems, E., Human Rights: Universality and Diversity, International Studies in Human Rights, vol. 66, The Hague: Martinus Nijhoff Publishers, 2001, at 422.
- 58.
Matscher, F., “Methods of Interpretation of the Convention” in The European System for the Protection of Human Rights, Macdonald, R.S.J., Matscher, F., and Petzold, H. (Eds.), Dordrecht: Martinus Nijhoff Publishers, 1993, pp. 63–79, at 76.
- 59.
Arai-Takahashi, Y., The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerpen/Oxford/New York: Intersentia Uitgevers NV 2002, fns 4 and 5.
- 60.
The concept was established in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation, [1948] 1KB 223, United Kingdom: Court of Appeal (England and Wales), 10 November 1947. The UK courts have nevertheless evidenced their willingness to apply a proportionality review in cases touching upon EU fundamental freedoms (Harbo, The Function of Proportionality Analysis in European Law, at 165 et seq. and cited cases).
- 61.
Lilli, The Principle of Proportionality in EC Law and Its Application in Norwegian Law, at 4, who discusses in particular the case of Norway. The differences in judicial cultures can result in considerable differences regarding the overall standard of scrutiny when reviewing national measures that restrict EU/EEA fundamental freedoms. See for this point Sect. 9.3.3.3 i.f.
- 62.
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at 3.
- 63.
Rupp-Swienty, A., Die Doktrin von der margin of appreciation in der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte, Munich: VVF, 1999.
- 64.
The Inter-American Court of Human Rights expressly recognised the doctrine while the United Nations Human Rights Committee implicitly referred to it (Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at 4 fns 9–10). The WTO AB has not expressly referred to the doctrine. This still young court-like institution applies a more contractual rather than constitutional reading of WTO law and has found other ways of showing deference to national authorities. Cf. e.g. AB-1997–4, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998, para. 117; cf. also Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at 4 fn 10.
- 65.
Sweeney, J.A. (2005). “Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era”, International & Comparative Law Quarterly, 54(2), 459–474.
- 66.
Christoffersen, J., Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights, International Studies in Human Rights, vol. 99, Martinus Nijhoff Publishers, 2009, at 237–238.
- 67.
Cf. e.g. Art. 5 TEU.
- 68.
Handyside v the UK, Application no 5493/72 [1976], para. 48.
- 69.
Ibid., para. 49.
- 70.
Cf. e.g. Harbo who criticises a lack of distinction of the two concepts in the ECtHR jurisprudence. Yet, he does not clearly distinguish the two concepts in his discussion of the case law either: Harbo, The Function of Proportionality Analysis in European Law, at 133.
- 71.
Matscher, “Methods of Interpretation of the Convention”, at 79.
- 72.
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at 2.
- 73.
Mahoney, P. (1998). “Marvellous Richness of Diversity or Invidious Cultural Relativism?”, Human Rights Law Journal, 19, 1–5.
- 74.
Villiger, M., “Proportionality and the Margin of Appreciation: National Standard Harmonisation by International Courts” in Dispute Resolution, Baudenbacher, C., and Planzer, S. (Eds.), Stuttgart: German Law Publishers, 2009, pp. 207–213, at 212.
- 75.
Montesquieu, De L’ Esprit Des Lois, Geneva: Barrillot et Fils, 1748.
- 76.
Baudenbacher, C. (2004). “Judicialization: Can the European Model Be Exported to Other Parts of the World”, Texas International Law Journal, 39(3), 381–400.
- 77.
Planzer, S., “The Arrogant Judges In Luxembourg and What It Is Actually About”, euobserver, 20 September 2007.
- 78.
Mahoney, “Marvellous Richness of Diversity or Invidious Cultural Relativism?”.
- 79.
Handyside v the UK, Application no 5493/72 [1976], para. 48.
- 80.
Baudenbacher, C. (2003). “The EFTA Court – An Example of the Judicialisation of International Economic Law”, European Law Review, 28(6), 880–899, at 897.
- 81.
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at 232. However, it would appear that the accession of countries from Central and Eastern Europe did not lead to a widening of the margin of appreciation: Sweeney, “Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era”. Cf. also Seymour, D. (1992). “The Extension of the European Convention on Human Rights to Central and Eastern Europe: Prospects and Risks”, Connecticut Journal of Interrnational Law, 8(2), 243–261.
- 82.
Sweeney, J.A. (2007). “A ‘Margin of Appreciation’ in the Internal Market: Lessons from the European Court of Human Rights”, Legal Issues of Economic Integration, 34(1), 27–52.
- 83.
C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, para. 3. Instead of reversing this approach, the CJEU subsequently recognised human rights as part of EU law. Nevertheless, the central role of the fundamental freedoms has been upheld.
- 84.
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at 3.
- 85.
Evrigenis, D. (1982). “Recent Case-Law of the European Court of Human Rights on Articles 8 and 10 of the European Convention on Human Rights”, Human Rights Law Journal, 3, 121–139, cited in Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at fn 68.
- 86.
ECHR, Preamble, 3rd para.: “[T]he aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms.”
- 87.
McBride, J., “Proportionality and the European Convention on Human Rights” in The Principle of Proportionality in the Laws of Europe, Ellis, E. (Ed.), Oxford/Portland: Hart Publishing, 1999, pp. 23–35, at 28.
- 88.
Hall, S. (1991). “The European Convention on Human Rights and Public Policy Exceptions to the Free Movement of Workers under the EEC Treaty”, European Law Review, 16(6), 466–488, at 475.
- 89.
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, at fn 17.
- 90.
TFEU, Preamble, i.i.
- 91.
Art. 35(1) ECHR.
- 92.
Kokkinakis v Greece, Application no 14307/88 [1993], para. 47.
- 93.
Sweeney, “Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era”.
- 94.
Judge Power in her dissenting opinion in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2; Merits and Just Satisfaction), Application no 32772/02 [2009], para. 47. The dissent in her opinion did not regard the principle of subsidiarity.
- 95.
McBride, “Proportionality and the European Convention on Human Rights”, at 35.
- 96.
“Council of Europe”, available at http://www.coe.int.
- 97.
Opinion of Advocate General La Pergola in C-124/97 Markku Juhani Läärä, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Kihlakunnansyyttäjä (Jyväskylä) and Suomen valtio (Finnish State) [1999] ECR I-6067, para. 23; cf. also Art. 267 TFEU.
- 98.
Cf. also Greer, S., and Williams, A. (2009). “Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?”, European Law Journal, 15(4), 462–481, at 462.
- 99.
Agreement on the European Economic Area, OJ L 001, 03.01.1994, p. 3, Art. 1.
- 100.
Baudenbacher, C. (2008). “The Goal of Homogeneous Interpretation of the Law in the European Economic Area: Two Courts and Two Separate Legal Orders, but Law that Is Essentially Identical in Substance”, The European Legal Forum, 8(1), 22–31.
- 101.
Agreement between the EFTA States on the Establishment of a Surveillance Authority and Court of Justice, OJ L 344, 31.01.1994, p. 3.
- 102.
Baudenbacher, C., The EFTA Court in Action – Five Lectures, Stuttgart: German Law Publishers, 2010. For instance, the EFTA Court does not have Advocate Generals. In this context, it can be noted that Advocate Generals of the CJEU have played an important role in the judicial dialogue between the CJEU and the EFTA Court: Baudenbacher, C., “The EFTA Court, the ECJ, and the Latter’s Advocates General – A Tale of Judicial Dialogue” in Continuity and Change in EU Law – Essays in Honour of Sir Francis Jacobs, Arnull, A., Eeckhout, P., and Tridimas, T. (Eds.), Oxford: Oxford University Press, 2008a, pp. 90–122.
- 103.
Baudenbacher, C., “Zur Auslegung des EWR-Rechts durch den EFTA-Gerichtshof” in Festschrift für Günter Hirsch zum 65. Geburtstag, Müller, G., Osterloh, E., and Stein, T. (Eds.), Munich: Verlag C. H. Beck, 2008b, pp. 27–50.
- 104.
Baudenbacher, “The Goal of Homogeneous Interpretation of the Law in the European Economic Area: Two Courts and Two Separate Legal Orders, but Law that Is Essentially Identical in Substance”; Baudenbacher, C. (1997a). “The Contribution of the EFTA Court to the Homogeneous Development of the Law in the European Economic Area, Part I”, European Business Law Review, 8(10), 239–248; Baudenbacher, C. (1997b). “The Contribution of the EFTA Court to the Homogeneous Development of the Law in the European Economic Area, Part II”, European Business Law Review, 8(11/12), 254–258; Baudenbacher, C., “Anmerkungen zur Rolle des EFTA-Gerichtshofs bei der Gewährleistung von Homogenität und Rechtssicherheit im Europäischen Wirtschaftsraum” in Festschrift für Wienand Meilicke, Heidel, T., Herlinghaus, A., Hirte, H., et al. (Eds.), Baden-Baden: Nomos Verlagsgesellschaft, 2010, 33–48; Baudenbacher, C., “Der EFTA-Gerichtshof und sein Verhältnis zu den Gemeinschaftsgerichten” in Höchste Gerichte an ihren Grenzen, Hilf, M., Kämmerer, J.A., and König, D. (Eds.), Berlin: Duncker & Humblot, 2007b.
- 105.
Harbo, The Function of Proportionality Analysis in European Law, at 105 and 68–70.
- 106.
For an example, cf. the CJEU’s opinion on a European and Community Patents Court: Opinion 1/09 on a European and Community Patents Court [2011] ECR I-1137. For a comment, cf. Baudenbacher, C. (2011). “The EFTA Court Remains the Only Non-EU-Member State Court: Observations on Opinion 1/09”, European Law Reporter, 7/8, 236–242.
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Planzer, S. (2014). The General Law on EU Fundamental Freedoms and the Conditions of Their Restrictions. In: Empirical Views on European Gambling Law and Addiction. Studies in European Economic Law and Regulation, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-02306-9_3
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