Who misunderstands the margin of appreciation? A reply to Eva Brems

Abstract This reply offers some critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.