Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights

Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in ﬁnding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further beneﬁt from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.


INTRODUCTION
The ways in which constitutions protect fundamental rights reflect national constitutional values, national traditions and legal culture. As is well known, for example, the German Grundgesetz expressly mentions human dignity as a core principle that must be respected by all public authorities; 1 the Dutch constitution is peculiar for its detailed provisions about the right to education; 2 the Swedish constitution stresses the great value of freedom of expression; 3 the Irish constitution expresses the Consequently, the Court must steer a careful course between respecting national values and providing for effective protection of individual fundamental rights. Sometimes it seems as if it can never make the right choices. 11 Nevertheless, against all odds, the Court often succeeds in 'ordering pluralism'. 12 Different explanations have been given for this, which partly have been found in the Court's judicial strategies. 13 Over time, these strategies have developed. The importance of certain approaches has decreased and other tactics have taken their place. For example, whilst the Court has traditionally concentrated on the substantive assessment of justifications and balancing review, nowadays it has been shown to often rely on 'procedural' review, focusing on the quality of the national judicial and parliamentary process of decision-making. 14 In this light, this article aims to address the relevance of two strategic instruments for establishing effective standards for fundamental rights protection in a diverse Europe: the margin of appreciation doctrine and 'incrementalism'. 15 Based on a qualitative analysis of the Court's case law in two recent years, 16 the argument is made that while the margin of appreciation doctrine potentially may be a very important doctrine, the Court's application has made it into a substantively rather empty rhetorical device (Section 2). The article continues to show that this is different for incrementalism, which increasingly seems to have replaced the use of the margin of appreciation doctrine as a primary instrument to deal with the need to reconcile European standard setting and national diversity (Section 3). In Section 4, this article examines how the Court could use the two strategic instruments to its advantage in having to deal with diverging fundamental rights standards in Europe. 11

THE DEMISE OF THE MARGIN OF APPRECIATION DOCTRINE
A. Diversity and Deference: The Theoretical Functions of the Margin of Appreciation Doctrine Legal scholars and theoreticians have embraced the Court's margin of appreciation doctrine as an important means to find a middle ground when legal traditions and cultures interact or collide. 17 The doctrine's underlying-and usually unexpressedidea is that a distinction can be made between the definition of fundamental rights and the possibilities for limitations of these rights. 18 The ECtHR's point of departure is that the definition of fundamental rights must be the same for all individuals living in the Council of Europe. 19 The notion of a shared and uniform minimum standard of fundamental rights protection expresses the idea of universal human rights, which need to be recognised and protected throughout Europe. For example, if reproductive rights are recognised as part of the right to privacy and family life for Austria, the same must be true for Ukraine, and if an individual can derive a right to recognition of his new gender after gender transformation from Article 8 ECHR in France, the same must be true for Italy.
Thus, differences in national fundamental rights standards become relevant only in the stage of the assessment of limitations. It is well known that restrictions on most Convention rights can be justified by the need to protect public interests or the rights and interests of others, provided they meet certain conditions. 20 One of the rationales of the margin of appreciation doctrine is that, in principle, the national authorities are best placed to assess the necessity and appropriateness of restrictions and limitations. 21 Not only do they have better access to factual information about the need for such restrictions, but also they are generally in a better position to evaluate how a certain national measure or decision relates to national constitutional values and legal traditions. For this reason, the Court is generally willing to leave a certain amount of discretion to the States in determining the reasonableness of interferences with the Convention rights. Similar to the administrative law doctrines of deference, a margin of appreciation then means that the Court will relatively easily accept the reasons and arguments advanced by the government, except where they are clearly unconvincing or disclose arbitrary decision-making. 22 If States would be granted the same margin of appreciation in all cases, the supervision of the Court would always be restrained. This would result in a rather empty concept of fundamental rights and a relatively low overall level of protection. 23 The strength of the margin of appreciation doctrine is, therefore, in its flexibility. 24 The Court has always emphasised that there is an important difference between a 'wide' and a 'narrow' margin of appreciation, even if this does not translate into very clear standards of review. 25 Generally, it can be said that a wide margin of appreciation results in a test of manifest unreasonableness or arbitrariness. 26 By contrast, when the Court accords a narrow margin of appreciation, it requires that a justification for a restriction be convincingly established and it strictly assesses the quality and persuasiveness of the justification advanced by the government. The Court may also demand that the aims of the restriction could not have been achieved by less restrictive means, 27 and it strictly scrutinises the national decision-making processes. 28 Hence, the margin of appreciation doctrine is of great use for the Court. 29 First, and most importantly, it allows the Court to address the tension discussed in Section 1. 30 The margin of appreciation doctrine applies only to the review of reasonableness, not to the definition of the scope of rights. 31  autonomous and uniform definition of the Convention rights remains unaffected by the doctrine. 32 By contrast, when the Court has to assess the necessity of restrictions of these rights, the doctrine can help it determine the degree to which it will heed specific national standards and circumstances. When limitations are closely related to deeply held constitutional values or divisive issues, the Court can use the doctrine to defer to the national authorities' views. 33 But if the fundamental right at stake is really important, and the Court considers a uniform and high standard of protection to be more significant than the need to respect diversity, it can apply more intensive review. This flexibility makes the margin of appreciation a well-suited strategic instrument to deal with matters of pluralism or diverging national fundamental rights standards. 34 Secondly, insofar as the scope of the margin is translated into relatively clear standards of review and the factors determining the scope of the margin are well established, the doctrine helps the Court provide clarity and predictability regarding its review of national measures. 35 In turn, this is attractive for national authorities, because it makes it easier for them to anticipate the Court's approach, avoid Convention violations from occurring and thereby heed their primary responsibility to protect the Convention rights.

(i) Introduction
The margin of appreciation doctrine has to be applied with great care in order to realise the two advantages mentioned above, that is, helping the Court deal with divergent national standards and views while protecting fundamental rights at a sufficiently high level, and contributing to the predictability of the Court's standards. This means the scope of the margin has to correspond to a certain intensity of review, which has observable effects for the standards and criteria to be applied and the burden of proof. The factors determining the intensity of review have to be applied consistently and in a logical manner, and if they point in different directions, they have to be evenly balanced.
On all of these counts, there appears to be a gap between the normative ideal and the Court's practice. 36  doctrine ever more often. 37 A more qualitative analysis shows, however, that such references in many cases are rather empty. This section shows there is a lack of clarity on the function of the margin of appreciation doctrine for the Court's review, there is confusion on the determination of the scope of the margin to be accorded, and the doctrine is seldom translated into clear standards of review.
(ii) The puzzling function of the margin of appreciation doctrine Different from what might be expected, the margin of appreciation is not standardly used as an indicator for the amount of deference the Court will pay to the national authorities. 38 This is logical for most cases on Articles 2 and 3, since these provisions have an absolute nature and therefore do not allow for reasonableness review, nor for any deference to be paid to the national authorities. 39 However, the Court also does not mention the margin of appreciation doctrine in many cases where it expressly assesses the proportionality or reasonableness of an interference; for example, when examining the justification for interferences with the freedom of expression or the right to respect for one's private life. 40 In other cases, the Court mentions the margin of appreciation only at the very end of its considerations, concluding that a restriction is or is not sufficiently justified and necessary and (therefore) remains or does not remain within the margin of appreciation of the State. 41 The margin of appreciation is sometimes even made part of  42 In cases where the margin of appreciation doctrine is used in this way, or when it is completely omitted, it does not serve any substantive purpose, since there is then no clear connection between determining the margin of appreciation, establishing the appropriate level of intensity of review and the actual review of the proportionality of the interference.
(iii) Confusion about the margin's scope If the margin of appreciation is actually determined before the proportionality review is carried out, the Court's judgments do not always clearly delineate the scope of the margin of appreciation. 43 Clarity is lacking, for example, where the Court mentions that there is 'a certain' margin of appreciation, without explaining the reasons for this; 44 where it mentions the margin of appreciation without specifying its scope; 45 where it refuses to indicate if a certain ground of discrimination is 'suspect'; 46 or where it mentions that in its case law on a certain topic the margin of appreciation 'has been narrowing', without explaining the consequences for the margin in the present case. 47 In other cases, the Court lists some possibly relevant factors without deciding what the actual scope of the margin of appreciation should be. 48 It may occur, for example, that the Court considers that the case is about an important right, which would justify a narrower margin of appreciation, but it also mentions some reasons to justify a wider margin of appreciation. 49 It is then up to the reader to decide if the resulting margin of appreciation is a wide one or a narrow one, or one somewhere in between.
The same is true where the Court mentions in one paragraph that States have a certain margin of appreciation, yet the exceptions provided for in the Convention are to be interpreted narrowly and the need for such exceptions must be convincingly established. 50 Sometimes the Court may eventually provide some clarity by adopting a rather stricter or more lenient approach in its actual review of the facts of the case, but the question then remains unaddressed why the factors pointing in the direction of a stricter review have trumped the factors pointing towards a more lenient review, or the other way around. 51 Moreover, in hardly any case does the Court pay attention to all of the intensitydetermining factors distinguished in its case law. 52 In some cases, it refers to just one of the many relevant factors, without addressing the others. 53 Most often, however, it relies on a precedent based approach, which means it accords the respondent State a certain margin of appreciation because it has already done so in earlier cases on a similar topic. 54  address this issue in great depth. Nevertheless, the focus on a limited number of factors may create the impression that the Court is not always entirely even-handed in determining the intensity of its review. 55 Moreover, there are confusing cases in which it announces that 'a certain' margin of appreciation is left, based on a number of factors or a line of previous cases, but later in the judgment it turns out that, in reality, the margin of appreciation is rather more narrow or wide. 56 Lastly, there are cases in which the Court addresses the scope of the margin at different points in its judgment without there being a really clear function for its doing so, 57 or where it leaves different margins to the respondent State in relation to different aspects of one particular interference (such as the prohibition of a demonstration). 58 Again, this may create considerable confusion as to the exact scope of the margin of appreciation. More generally, it may be concluded from the Court's practice that, in many cases, there is no clear connection between the factors determining the scope of the margin and the actual margin applied.
(iv) Unclear consequences for standards of review Even if the Court determines the scope of the margin of appreciation before embarking on the test of reasonableness, it hardly ever clarifies the consequences of the margin for the standards of review. 59 In practice, it may happen that the stated scope of the margin and the actual intensity of review diverge. 60 Sometimes a wide margin is left, but the Court's actual review is relatively strict, for example, because it applies rather exacting procedural standards. 61 In other cases, the Court mentions that a narrow margin is left, but in fact its test is rather lenient and permissive. 62 Furthermore, there are many cases in which the Court restricts itself to stating that there is 'a certain' margin of appreciation. 63 Clearly, this provides little insight into the intensity of review to be applied or the related standards of review. This is even more so in cases where the Court does not mention the margin of appreciation at all in conducting reasonableness review. 64 Even in the rare cases in which the Court translates the margin of appreciation into standards of review, these standards usually are not very clear. The Court may merely state, for example, in very general terms that a wide margin means that it has to apply a fair balance test. 65 The other way around, it may occur that the Court uses a deferential standard of review-such as a standard of 'arbitrariness'-without actually mentioning the margin of appreciation. 66 Again, this demonstrates that the margin of appreciation doctrine does not bear any real significance for the Court's review of reasonableness, in that it does not have any measurable impact on the standards it uses in assessing that reasonableness.

(v) Conclusion
There certainly are some cases in which the intensity determining function of the margin of appreciation doctrine is expressed and the doctrine helps the Court find a balance in hard cases or cases concerning divisive issues. 67 The case law analysis presented above, however, demonstrates that the Court's application of the margin of appreciation doctrine is rather far removed from its theoretical objectives. In many cases the doctrine is not used as an instrument to determine the strictness and standards of review and the factors determining the scope of the margin are obscure. In fact, the analysis shows that the margin of appreciation has developed into a ritual formula: some cases aside, it hardly makes a difference to the test of proportionality if the margin of appreciation is or is not mentioned. 68 Thus, the Court seems to have passed the stage where the margin of appreciation is really important for mitigating the tension between respect for national differences and the need to respect fundamental rights, and for providing clarity to the national authorities on the standards to be used. Instead, it has moved on to using other instruments to give shape to the notions of subsidiarity and effective protection, as is discussed in the next section.

CASE-BASED REVIEW, INCREMENTALISM AND THE CREATION OF GENERAL PRINCIPLES
A. The Double Function of the Court: Individual Redress and Interpretation of the Convention The Court has always emphasised that the Convention has entrusted it with a double task. 69 The Court's primary role is to decide on individual applications and offer redress in the individual case before it. 70 The States are allowed and encouraged, but not obliged to draw broader inferences from these judgments. 71 As a consequence, the assessment of the Court is limited to the facts of the case. 72 Simultaneously, the Court has accepted that its role is not only to apply the Convention in individual cases, but also, more generally, to elucidate and develop the meaning of the rights protected by the Convention. 73 The Court accordingly also aims to provide for more abstract and general definitions and standards, which can be applied regardless of the facts and circumstances of the individual case. Moreover, the Court has consistently repeated that it will not depart, without good reason, from precedents laid down in previous cases. 74 Consequently, well-established principles and standards developed in the Court's case law can be said to have res interpretata. 75 This double function of the Court helps it respond to the often conflicting obligations the Court has to meet. As is clear from the analysis presented in this section, the Court tends to work towards setting clear, uniform and well-defined criteria defining the minimum standard of human rights, while still taking account of diversity and local conditions in the application of such standards in the individual case.

B. Incrementalism and Case-Based Review as a Judicial Strategy to Deal with Diverging Standards
(i) Incrementalism If the Court has to address a relatively new and potentially sensitive and divisive subject matter, such as the right to assisted suicide or the right to abortion, it acts in a very cautious, incremental and circumscribed manner. 76 In the case of Tysia˛c v Poland, for example, which was one of the very first cases on abortion, the Court kept itself from giving a far-reaching judgment about the content of the right to personal autonomy and the possibilities for limitation. 77 Instead, the Court restricted its judgment to the facts of the case, avoiding the moral issues at stake, and found a violation of the Convention purely on the basis of the lack of legal remedies open to the applicant. The Court almost seemed to dip its toe in the water to test its temperature. 78 In subsequent cases, it continued to tread very carefully and slowly, trying not to immerse itself in the deep and cold waters of abortion regulation too quickly. Nevertheless, in each of the cases decided, it went one step further and it clarified its stand on yet another issue, thus gradually building a system of more general standards and principles to be applied in later cases. In the case of A, B and C v Ireland, the Court even accepted that, although Article 8 could not be interpreted as conferring a right to abortion, a prohibition of abortion sought for reasons of well-being or health comes within the scope of the right to respect for one's private life and, accordingly, Article 8 of the ECHR. 79 By now, it is clear that all States at the least should provide for informed consent in abortion cases; for second opinions; for sufficient involvement of women in the decisions being taken; for clear, accessible and foreseeable legislation; for reliable and prompt information about access to abortion; and for an effective judicial remedy. 80 In a series of judgments on assisted suicide and euthanasia, the Court has chosen the same approach. It developed its interpretation of Article 8 from 'not excluding' that a right to assisted suicide could be covered by the right to personal autonomy in 2002, to unreservedly and clearly accepting the applicability of Article 8 to such cases in 2011. 81 In an incremental, yet effective way, the Court thereby has covered the sensitive terrains of abortion and euthanasia, gradually providing a higher level of protection. 82 In the same vein, the Court seems to have chosen incrementalism in imposing positive obligations on the States to provide for legal recognition of relationships between same-sex couples, 83 as well as in cases on a right to access to information under Article 10 of the ECHR. 84 In all such cases, the value for the Court clearly is in the possibility to change position if its approach is met with strong national criticism, without losing face and while still retaining a relatively high level of protection of Convention rights-if only because certain procedural obligations are imposed on the States.
(ii) Review of national application of general principles Once incrementalism has done its work, the Court may make use of its results by listing the 'general principles' it has developed in its case law. 85 These general principles are based on the outcomes of ad hoc balancing in previous cases, which the Court has tested and found to be sufficiently acceptable and broadly applicable to serve as general standards in later case law. Often the Grand Chamber brings together the lines the various Chambers have drawn in their case law. 86 In doing so it may confirm, clarify, refine or revise a standard previously formulated, 87 or it may opt for a harmonised approach when there are (seemingly) conflicting precedents. 88 Sometimes also a Chamber may distil some important general principles and standards from the Court's previous case law. 89 Such general principles serve an important function for the Court's case law. In an increasing number of cases, the Court first lists or quotes the relevant general factors and principles, and then assesses whether the national authorities have complied with them. 90 It may then show deference to the national authorities' findings if it is clear they have taken the principles carefully into account. 91 By contrast, if it appears they have omitted to do so, or they have misapplied the criteria to the facts of a case, it may find a violation of the Convention. 92 The Court's practice of formulating general standards or principles and its tendency towards 'procedural review', however, do not mean the end of case-based decision-making. In many cases, the Court continues to apply its standards to the facts of the case, and it does so in an individualised and case-sensitive manner. This also allows the Court to use 'distinguishing' techniques in order to disapply, slightly change or adapt the standards when such is needed in light of the specific circumstances of the case. 93 If particular national (constitutional) values are at stake, or if it turns out that a case relates to a sensitive issue of socio-economic rights, such concrete review offers much room for manoeuvre. This means a slightly different decision can be reached to take account of national interests or recent changes made in national legislation or policy. 94 Hence, individualised application of general standards allows the Court to defer to the national authorities where national constitutional values, legal traditions or sensitive issues are concerned, without having to change the general principles determining the minimum level of protection required. 95 It appears that the Court does not need any margin of appreciation doctrine to do so: fact-specific decision-making leaves just as much leeway to the national authorities.
(iii) Case-based refinement of general principles Finally, in some cases the Court works in an opposite direction of that of 'incrementalism' and gradual recognition of general principles. It then starts off a new line of case law by defining a general principle, and only later applies and refines it by application in concrete cases. A famous case in point is that on assistance by a lawyer during police interrogations. 96 In the Salduz case, the Court head-on confronted the question if such assistance must be offered. 97 It provided for rather elaborate reasoning on the importance of such assistance for the rights of the suspect and it held that such assistance should, in principle, always be offered. 98 The States responded to this judgment in different ways, 99 causing many new cases to be brought. As a result, the Court has had to deal with numerous post-Salduz cases in which it has had to clarify, revise and refine the meaning of its first judgment. 100 In deciding on these cases, the Court once again relied on its particularised, case-based approach, taking into account the precise circumstances of every applicant and only gradually lifting the remaining uncertainties regarding the judgment in Salduz. Eventually, it appeared from all these concrete applications that the previously established general standards were not sufficiently workable and clear. For that reason, the Court in Ibrahim chose to reformulate and refine the general standards, taking due account of the difficulties that had been demonstrated in the individual cases. 101 This example discloses a certain search for reflective equilibrium in that it shows a continuous movement from definition of general principles to refinement in individual cases, to redefinition of general principles, and further refinement in individual cases. 102

(iv) Conclusion
It is easy to see why the Court generally favours an incremental and case-based approach. Not only does such an approach fit well with the double task of the Court, providing general as well as individual justice, but it also has advantages from a strategic perspective. A gradual, step-by-step approach allows the Court to test the water before formulating general principles. If strong national opinions or values are at stake, a strongly fact-based approach enables the Court to take such national values into account in deciding on individual cases without setting too strong a precedent. The effect is that the Court, even without using the margin of appreciation doctrine, can be as deferential as it thinks is necessary. It is equally clear, though, that a strongly case-based and gradual approach has important disadvantages in terms of predictability and legal certainty, since general standards may remain unclear for a rather long time. 103 For that reason, it is also understandable that the Court sometimes sits down to bring its case-based criteria together in a logical and coherent set of general principles. These principles provide for clarity, but they also form the basis for a new line of cases, in which the Court may apply them in a case-sensitive manner. The same is true where the Court first provides a general interpretation (as it did in the Salduz case) and then starts refining this in a set of similar cases. It is exactly this continuous interplay between the general and the specific that makes this approach into such a successful tool, since it helps develop a certain and cognisable standard of protection, while still offering sufficient leeway to take account of diverging national values.

CONCLUSION
The ECtHR has to answer many questions of interpretation and application of fundamental rights that are answered by constitutional courts on the domestic level. The parallel between the ECtHR and a constitutional court is therefore easily drawn. 104 Yet, it is evident that the Court's position is different from that of national constitutional courts-the Court has a supranational character and it is required to play a subsidiary role. Moreover, the Court must set minimum standards of fundamental rights protection for 47 States with very different legal and constitutional systems and with potentially divergent views on the meaning and importance of certain rights. Only few national constitutional courts find themselves in a similar position.
To meet these challenges, some have argued that the Court's constitutional role should be strengthened. 105 A filtering mechanism should be introduced to permit the Court to select only those cases which would allow it to give solid Convention interpretations or which could lead to further development and refinement of its previous case law. 106 This should result in 'extensively reasoned [judgments] which establish the jurisprudential principles with a compelling clarity'. 107 Others find such a constitutional role for the ECtHR undesirable, since many individual applications do not relate to complex constitutional rights issues, but concern obvious violations of Convention rights for which individual redress must be offered. 108 As long as there are no adequate remedies in some of the States available to solve these issues, and as long as such violations continue to exist, there must be an external instrument where individuals can seek protection and which can serve to make others aware of the problems in the States. 109 Apparently, thus, the Court will have to continue combining the functions of being a constitutional court and offering individual redress. 110 On the one hand, given the need to protect the Convention regardless of place of residence, it is crucial that a supranational court can set minimum standards. On the other hand, the role of the Court cannot be limited to setting general standards. If a State happens to violate the standards defined by the 'constitutional' ECtHR, there is still a need for an external mechanism for control and correction, as well as for a remedy for victims of such violations. Moreover, Section 3 has shown that the Court actually needs the plurality and diversity of a large body of individual cases in order to give shape to its constitutional role. Indeed, the Court has been able to develop its incremental approach precisely because it receives so many different cases each year. Based on the facts of each case, it has managed to build a formidable set of general principles, standards and criteria, which are often of high quality and can easily be relied on by national authorities. The Court's approach further allows it to apply these standards in such a way as to take due account of national diversity and national constitutional values, without losing the generality and importance of these standards. This advantage would be lost if the Court were competent to decide on a smaller number of carefully selected cases only.
There is thus a good reason to cherish the present situation in which the Court deals with all incoming individual complaints on a case-by-case basis, while providing for sufficiently 'constitutional' principles based on long lines of case law. This means the Court should use its newest tool, the upcoming advisory opinions procedure, carefully. Protocol 16, once it enters into force on 1 August 2018, will allow the highest national courts to suspend a pending case and refer a question of interpretation of the Convention to the Court to be answered by means of a (non-binding) advisory opinion. 111 Although it might seem to be useful to have the Court answer such interpretative questions in a general and abstract fashion, it might be problematic if the Protocol would invite the Court to provide for broad and general principles right away. 112 As discussed in Section 3.B.iii, just as happened after the judgments in cases such as Salduz, national authorities start looking for gaps and loopholes in the Court's reasoning right away, or they may simply balk at a certain advice if it is too general or too principled in nature. Surely the Court could provide for refinement and nuance in subsequent individual cases, but it might be more difficult to do so without loss of face. 113 It would be preferable, therefore, if the Court would employ both the current procedure and Protocol 16 to make the most of the combination of setting 'constitutional' standards and applying such standards in individual cases. Not every case is well suited to take a small new step on new terrain-some cases may be atypical and non-representative, others may not allow to answer an interpretative question sufficiently clearly, and yet other cases do not evidently relate to Convention rights. 114 Moreover, deciding each case on the facts, without giving it any prior thought, might lead the Court towards defining a set of standards that it possibly would not have reached if it would have reflected on them in an earlier stage. For that reason, filtering, or perhaps rather 'screening' 115 of individual cases to assess their relevance appears to be essential. The Court already has important instruments at its disposal to do so. 116 The filtering section of the Court could use the Court's priority policy, which allows it to decide on urgent and important cases more quickly, to pick those cases which seem to be representative and which would allow it to use its incremental approach in a sensible manner. 117 Likewise, in relation to Protocol 16, the Court could carefully select only those requests for advice that allow it to further refine or re-define certain standards, without having to enter entirely unexplored terrain. After having developed a sufficiently clear set of standards to be applied by national authorities, it could easily dispose of similar cases by using a procedural approach or by leaving such issues to be decided by a single judge formation or a Committee, thus making clear that there is no legal importance to such cases. This would allow the Court to make optimal use of the combination of case-based decision-making and constitutional standard-setting, as well as allow it to heed individual and national interests in a balanced manner, both before and after it has formulated general principles.
But what, then, of the margin of appreciation doctrine? Does this doctrine no longer have a function for the ECtHR except as a rhetoric device and makeweight, as it would seem to appear from Section 2.B? 118 No: even in a system dominated by incrementalism and reflective equilibrium, the doctrine still has a role to play as a 'sensible pragmatic legal doctrine'. 119 If the Court has to decide cases on the merits, the question as to the intensity of its review still arises-case-based review may be very strict and intensive, but it may also be superficial and lenient. The function of the margin of appreciation doctrine is to help the Court decide on the intensity of its review and to do so in a predictable and well-structured fashion. The legal certainty created by proper application of the doctrine is of great value in a highly case-based system. Moreover, the margin of appreciation doctrine still has a role to play in helping the Court respect national diversity, especially when it has to decide on the proportionality and necessity of concrete interferences. 120 Ideally, therefore, the Court would revise its approach towards the margin of appreciation and restore its original function and meaning. 121 In combination with its approach of incremental standardbuilding, this would allow the Court to really be the final arbiter in fundamental rights cases, even in a Europe of diverging fundamental rights standards. 118 Cf. Kratochvíl, supra n 22 at 354. 119 Agha, supra n 19 at 11. 120 Ibid. 121 For some possibilities to improve its use, see Gerards, supra n 17 at 115 et seq. See also Kratochvíl, supra n 22 at 354-5.