Fundamental rights in Europe: tutorial 4
Tutorial 4: Subsidiarity
Subjects:
Principle of subsidiarity
ECtHR doctrine of margin of appreciation
Subsidiarity in judicial process (preliminary references and admissibility
ECtHR)
Learning aims:
To understand the dynamics between domestic courts, national
authorities, and European courts
To be able to explain the meaning and effects of the margin of
appreciation doctrine as used by the ECtHR
To be able to identify relevant factors for establishing the scope of the
margin of appreciation and to apply them to a case-solving question
To be able to identify the circumstances under which a domestic court is
obliged to refer a question to the CJEU and to apply this to a case-solving
question
To be able to identify what kind of questions a domestic court can or
should refer to the CJEU and to apply this to a case-solving question
To be able to explain and analyse the admissibility criteria for a complaint
lodged to the ECtHR and to apply this to a case-solving question
Literature:
o G. L. Neuman, ‘Chapter 15. Subsidiarity’, in: S. Shelton (ed), The Oxford
Handbook of International Human Rights Law, Oxford University Press
2013, available here,
> only section 1 (What is subsidiarity) and section 4 (Procedural Doctrines
of Subsidiarity). you should know what the principle of subsidiarity is and
what its function is with regard to fundamental rights and you should know
which procedural techniques exists to ensure subsidiarity, what the margin
of appreciation doctrine as developed by the ECtHR is, and which factors
influence its scope.
o W.A. Schabas, ‘Art. 35. Admissibility criteria’, in: The European Convention
on Human Rights: A Commentary, Oxford University Press 2015, available
here,
>you can skip the section on drafting the provision and on declarations. you
should know which admissibility conditions apply and how they are
interpreted and applied by the ECtHR
o A. Reinisch, ‘Judicial Control within the Union’, in: Essentials of EU Law,
Cambridge University Press 2012, available here,
>you can skip sections 5.7 and 5.9-5.13. you should know the different
procedures before the CJEU and the procedural aspects of the preliminary
references procedure
Case law:
1
, Fundamental rights in Europe: tutorial 4
ECtHR, Handyside v the United Kingdom, 7 December 1976, No. 5493/72
ECtHR, Sunday Times v the United Kingdom, 26 April 1979, No. 6538/74
ECJ, Case 6/64 Costa v Enel [1964] ECR 585
ECJ, Case 41/74 Van Duyn v Home Office [1974] ECR 1337
ECJ, Case 314/85 Fotofrost v Hauptzollamt Lubeck-Ost [1987] ECR 4199
ECJ, Case 283/81 CILFIT v Ministry of Health [1982] ECR 341
Question 1
Watch de video on admissibility conditions, available here
Find an admissibility decision of the ECtHR on the case law database Hudoc.
Explain on the basis of which condition the application is declared non-
admissible, how the Court arrived at its conclusion and whether or not this
condition is mentioned in the video.
NB. You should be able to read your decision in class, on paper or digitally.
Inadmissible reasons:
Did not exhaust domestic remedies
manifestly ill-founded her complaint did not make sense.
Question 2
Remember Bella and her lawsuit on the basis of her right to privacy from tutorial
3. Suppose she lost her lawsuit with the district court of Member State Y three
months ago. This judgment is subject to appeal with the highest administrative
court.
Bella had asked the district court to refer her case to the CJEU, because she
believed that the presidential decree ordering the publication of her pictures is
an incorrect implementation of EU Directive 1234/2017 The district court,
however, refused to refer her case to the CJEU because this would be a waste of
time and public money.
a. Is this refusal by the district court contrary to EU law?
You start at art. 267 TFEU:
may refer: the Court may refer, is not obliged to refer.
shall refer: the Highest Court needs to refer because there is no higher
court possible.
It shall refer. Why is there a distinction between the highest court and the lowest
court? Because of the uniformity interpretation of Union law. Otherwise there
will be different interpretation between several MS’. So the Court itself needs to
ensure this uniformity by giving the right interpretation of Union law.
2
Tutorial 4: Subsidiarity
Subjects:
Principle of subsidiarity
ECtHR doctrine of margin of appreciation
Subsidiarity in judicial process (preliminary references and admissibility
ECtHR)
Learning aims:
To understand the dynamics between domestic courts, national
authorities, and European courts
To be able to explain the meaning and effects of the margin of
appreciation doctrine as used by the ECtHR
To be able to identify relevant factors for establishing the scope of the
margin of appreciation and to apply them to a case-solving question
To be able to identify the circumstances under which a domestic court is
obliged to refer a question to the CJEU and to apply this to a case-solving
question
To be able to identify what kind of questions a domestic court can or
should refer to the CJEU and to apply this to a case-solving question
To be able to explain and analyse the admissibility criteria for a complaint
lodged to the ECtHR and to apply this to a case-solving question
Literature:
o G. L. Neuman, ‘Chapter 15. Subsidiarity’, in: S. Shelton (ed), The Oxford
Handbook of International Human Rights Law, Oxford University Press
2013, available here,
> only section 1 (What is subsidiarity) and section 4 (Procedural Doctrines
of Subsidiarity). you should know what the principle of subsidiarity is and
what its function is with regard to fundamental rights and you should know
which procedural techniques exists to ensure subsidiarity, what the margin
of appreciation doctrine as developed by the ECtHR is, and which factors
influence its scope.
o W.A. Schabas, ‘Art. 35. Admissibility criteria’, in: The European Convention
on Human Rights: A Commentary, Oxford University Press 2015, available
here,
>you can skip the section on drafting the provision and on declarations. you
should know which admissibility conditions apply and how they are
interpreted and applied by the ECtHR
o A. Reinisch, ‘Judicial Control within the Union’, in: Essentials of EU Law,
Cambridge University Press 2012, available here,
>you can skip sections 5.7 and 5.9-5.13. you should know the different
procedures before the CJEU and the procedural aspects of the preliminary
references procedure
Case law:
1
, Fundamental rights in Europe: tutorial 4
ECtHR, Handyside v the United Kingdom, 7 December 1976, No. 5493/72
ECtHR, Sunday Times v the United Kingdom, 26 April 1979, No. 6538/74
ECJ, Case 6/64 Costa v Enel [1964] ECR 585
ECJ, Case 41/74 Van Duyn v Home Office [1974] ECR 1337
ECJ, Case 314/85 Fotofrost v Hauptzollamt Lubeck-Ost [1987] ECR 4199
ECJ, Case 283/81 CILFIT v Ministry of Health [1982] ECR 341
Question 1
Watch de video on admissibility conditions, available here
Find an admissibility decision of the ECtHR on the case law database Hudoc.
Explain on the basis of which condition the application is declared non-
admissible, how the Court arrived at its conclusion and whether or not this
condition is mentioned in the video.
NB. You should be able to read your decision in class, on paper or digitally.
Inadmissible reasons:
Did not exhaust domestic remedies
manifestly ill-founded her complaint did not make sense.
Question 2
Remember Bella and her lawsuit on the basis of her right to privacy from tutorial
3. Suppose she lost her lawsuit with the district court of Member State Y three
months ago. This judgment is subject to appeal with the highest administrative
court.
Bella had asked the district court to refer her case to the CJEU, because she
believed that the presidential decree ordering the publication of her pictures is
an incorrect implementation of EU Directive 1234/2017 The district court,
however, refused to refer her case to the CJEU because this would be a waste of
time and public money.
a. Is this refusal by the district court contrary to EU law?
You start at art. 267 TFEU:
may refer: the Court may refer, is not obliged to refer.
shall refer: the Highest Court needs to refer because there is no higher
court possible.
It shall refer. Why is there a distinction between the highest court and the lowest
court? Because of the uniformity interpretation of Union law. Otherwise there
will be different interpretation between several MS’. So the Court itself needs to
ensure this uniformity by giving the right interpretation of Union law.
2
