The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights?

Abstract:

The area of freedom security and justice (AFSJ) is currently one of the most dynamic EU integration areas. Largely absent from the debate on mutual recognition, which is the main regulatory practice in this policy field, within the AFSJ there has been the need to ensure a better balance between security focused instruments and due process rights in national courts. This paper discusses the impact of a proportionality test in the AFSJ and the function of the European Court in this balancing exercise. In addition the paper discusses the consequences, dangers and merits, of applying a margin of appreciation test in this area and what the EU can learn from Strasbourg with regard to the adequate protection of human rights.