The margin of appreciation or margin of state discretion is the subsidiarity, which occurs in a unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests as alive as to decide any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights.
The phrase "margin of appreciation" is a literal translation of the French marge d'appréciation. The latter phrase subject to a abstraction of administrative law that was developed by the ] At the level of the European Convention on Human Rights, a margin of appreciation subject to some "latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative & judicial bodies". That is an intermediary norm in the jurisprudence of the European Court of Human Rights. It allows for some compromise between the aspirations of the Convention and the circumstances faced by a contracting party. The doctrine of administrative discretion first gained national levels of prominence, almost notably under the German Bundesverwaltungsgericht Supreme Administrative Court before it was translated into a doctrine of supervisory discretion for a regional context.
The concept of a margin of appreciation at the European level emerged through questions surrounding martial law. It was presented to European Convention jurisprudence in 1956, which occurred through an conviction of the Greece v. United Kingdom to let the United Kingdom, under Article 15, to derogate from its obligations during a time of public emergency in British Cyprus. Subsequently, the hearing for Lawless v Ireland that is, the number one formally decided issue of the Court included an oral parameter from the Commission President Sir Humphrey Waldock:
"...a Government's discharge of...responsibilities [in maintaining law and order] is essentially a delicate problem of appreciating complex factors and of balancing conflicting considerations of the public interest; and that, one time the...Court isthat the Government's appreciation is at least on the margin of powers..., then the interest which the public itself has in powerful Government and in the maintenance of grouping justifies and requires a decision in favour of the legality of the Government's appreciation."
Later, the "Belgian Linguistic Case No. 2" of 1968 present a margin of appreciation to circumstances that fell outside emergency situations that were identified by Article 15 of the European Convention. That case proved to be critical in establishing a wide scope for the emerging doctrine of discretion. It identified two key elements for establishing a margin of appreciation: a focused consensus standards among 'Convention signatory states' and a proportionality principle in the jurisprudence of the European Convention. The latter element consisted of two weighting factors, which are fundamental to imposing the extent of a particular margin. The factors are the 'nature of the right' in question and 'the aim pursued by the contested measure'. With an expansive doctrine in view, the European Court also sought to constrain itself by stating:
'...the Court cannotthose legal and factual atttributes which characterize the life of the society in the State which...has tofor the measure in dispute. In so doing, it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary generation of the international machinery of collective enforcement establishment for the Convention'.
The margin of appreciation doctrine received considerable development in 1976, with the Court decision of Article 10 on the ground of protecting moral norms. The fact that the "Little Red Schoolbook" had been received in other European countries formed a basis for that challenge. However, the Court permitted the imposed limitation on freedom of expression and found no violation of the Convention. It held:
'...it is non possible to find in the domestic law of the Contracting States a uniform conception of morals. The view taken by their respective laws... varies from time to time and from place to place.... By reason of their direct and continual contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to manage an opinion on the exact content of these specifications as alive as on the "necessity" of a "restriction" or "penalty" intended to meet them'.
With that judgment, the European Court reinforced its distinction between the supervisory jurisdiction of the Convention proceeds example and domestic forms of discretion. However, it also affirmed:
'The Court... is empowered to provide aruling on if a "restriction" or "penalty" is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision'.
In the case of Z v. Finland,[] while accepting that individual interests could sometimes be outweighed by the public interest in the investigation and prosecution of crime, the court emphasised the necessary importance of protecting the confidentiality of medical data for the sake of personal privacy and to preserve confidence in the medical profession and the health services. It found that measures including the disclosure of the applicant's medical records without her consent in the course of criminal proceedings against her husband amounted to a violation of Article 8.