European standard or European consensus

One principle limiting the application of the principle of margin of appreciation is that of a European standard, which may also appear in the case law of the European Court of Human Rights with different linguistic expressions, including “European consensus”, “common ground” or “common conceptions”, although the Court may be criticised for having sometimes an inconsistent approach to its use⁵³³. The margin of appreciation left for the national authorities is smaller in cases where the Court con-siders a common European standard to exist. This has often been the case in respect of the freedom of expression, for example, and the Court has been able to assess the necessity of restrictions independently.⁵³⁴ For example, in the case of Sunday Times, the Court has stated the main principles of the freedom of expression, constituting clearly established common ground in the States parties to the Convention and entailing a narrow margin of appreciation, as follows:

[…] Freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to

“information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions

533 See notes 511 and 569.

534 Pellonpää & al. 2012, p. 306 and 307, Matscher 1998, p. 34 and 35.

which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. […] ⁵³⁵

Thus, although the wording does not clearly refer to a common European standard, it is considered to exist in those cases where the restrictions on the enjoyment of the right in question must be interpreted narrowly. Instead, the Court often refers explicitly to a European standard, European consensus or common conception or ground in negative terms, i.e. by stating where it is not possible to find that it exists. That is often the case in respect of the protection of morals or the freedom of religion, as appears from the foregoing section on the margin of appreciation. For example, in the case of Handyside, the Court reasoned as follows:

[…] In particular, it is not possible to find in the domestic law of the various Contract-ing States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them. […] ⁵³⁶ Further, in the case of Otto Preminger Institut, the Court stated that

As in the case of “morals” it is not possible to discern throughout Europe a uniform conception of the significance of religion in society (see the Müller and Others v.

Switzerland judgment of 24 May 1988, Series A no. 133, p. 20, para. 30, and p. 22, para. 35); even within a single country such conceptions may vary. For that reason it is not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others. A certain margin of appreciation is therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference.⁵³⁷

535 Sunday Times v. the United Kingdom, judgment of 26 April 1979, Series A 30, § 50.

536 Handyside v. the United Kingdom, judgment of 7 December 1976, Series A 24, § 48.

537 See e.g. Otto-Preminger-Institut v. Austria, judgment of 20 September1994, Series A 295-A, § 50. See also Müller and Others v. Switzerland, judgment of 24 May 1988, Series A 133, §§ 30 and 35,and Informationsverein Lentia and Others v. Austria, judgment of 24 November 1993, Series A 276, §35.

In those fragments of discourse, the Court expresses the situation in negative terms, i.e. a European standard does not exist. Thus, by way of drawing an e contrario conclu-sion from the above fragments of discourse, a European standard of protection typically exists in such cases where there is less room for changing the provisions of law and they remain rather static. The Court may also use different types of wordings when referring to the European standard or a uniform European conception, for example as follows:

As to legal developments in this area, the Court has examined the comparative study which has been submitted by Liberty (see paragraph 35 above). However, the Court is not fully satisfied that the legislative trends outlined by amicus suffice to establish the existence of any common European approach to the problems created by the recognition in law of post-operative gender status. In particular, the survey does not indicate that there is as yet any common approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection, or the circumstances in which a transsexual may be compelled by law to reveal his or her pre-operative gender.⁵³⁸; or

[…] These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strict-ness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not - or does not yet - exist.

It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation. […] ⁵³⁹

Although the linguistic expression is slightly different, an analysis of the Court’s dis-course indicates that there is no difference in the way in which it is used. The European standard, which is closely connected with the margin of appreciation, may sometimes be difficult for individual States to conceive. National courts and authorities seldom make such an extensive comparison between standards of the protection of rights in differ-ent states that it would affect their own decision-making. The concept of a European standard, as a guiding principle concerning the interpretation of the Convention, is also based on the case law of the European Court of Human Rights. Furthermore, the

538 Sheffield and Horsham v. the United Kingdom, Grand Chamber judgment of 30 July 1998, Reports of judgments and decisions 1998-V, § 57.

539 Rees v. the United Kingdom, judgment of 17 October 1986, Series A 106, § 37.

Court’s opinion on various issues seems to have changed along with time, although in some cases slowly. For example, in early cases concerning the rights of homosexuals and transsexuals the Court did not find a common European standard to exist, but afforded the States a wide margin of appreciation. However, since 2002, the Court has been more willing to recognise that there is an emerging change in the legal situation the change of sex, for example, should result in certain legal effects that need to be recognised.⁵⁴⁰ Such evolving interpretation by the Court may create some challenges of application of the Convention at the national level, which may be resolved by resorting increasingly to principles of interpretation applied by the European Court of Human Rights. In any case, the application of the principle of European standard leaves some room for strengthening the legal culture of protecting fundamental rights and human rights, and the fragments of discourse analysed in the foregoing indicate that it is often linked to signs of transition of legal culture, although it is applied together with other principles of interpretation. The relevant linguistic elements may include expressions such as “legal developments”, “legislative trends” or “transitional stage” as well as simple statements of fact and law. However, the other relevant principles of interpretation, particularly the principle of dynamic interpretation and principle of autonomous meaning, are more clearly those that allow considerable transition of the legal culture.