In its first judgement on enhanced cooperation (concerning the Unitary patent), the Court of Justice stated that it is mostly for the Council to decide whether there is hope for a political agreement among all Member States, and that it has a wide margin of appreciation in doing so. (europeanlawblog.eu)
However, it concluded that «having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Art 8 does not require a legally binding pre-notification requirement». (newlawjournal.co.uk)
As Bogg's contribution argues convincingly (p. 70 - 73), the problem lies less in the case to case differing margin of appreciation granted by the Court to domestic courts, but rather in the categorical decision to treat the balancing of fundamental rights between individuals as some kind of natural and neutral process left to judges. (europeanlawblog.eu)