Council of Europe (Harmonization of Private Law)

From Max-EuP 2012

by Patrick Kinsch

1. History and organization

The Council of Europe (whose headquarters are in Strasbourg) was the first international organization set up with the goal of bringing about ‘closer unity’ between the European states (preamble to the Council of Europe Statute, Treaty of London of 5 May 1949). Its aim is ‘to achieve a greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress’ (Art 1(a) of the Statute). It was founded at the instigation of European federalists (the French foreign minister Robert Schuman proposed the name ‘European Union’ for the new organization), but some states (in particular the United Kingdom) pursued the rather opposite objective of enabling the western European democracies to cooperate more closely, but not too closely, in view of the already obvious division of Europe into two blocs at that time.

The foundation of the Council of Europe could not lead to a European Union. In contrast to the EU, it remained a classical international organization without a legal order of its own. Nonetheless, the Council of Europe has had a particular significance with regard to European private law as the custodian of the European Convention on Human Rights (human rights and fundamental rights (ChFR and ECHR)); European Court of Human Rights (ECtHR)) and the European Social Charter (European labour law).

The Council of Europe’s two main organs are the Committee of Ministers, on which the Member States are represented by their foreign ministers, and the Parliamentary Assembly, which is not made up of directly elected parliamentarians but of representatives of the national parliaments. Under the Council of Europe Statute, neither the Committee of Ministers nor the Parliamentary Assembly are able to pass legislative acts; thus the Council of Europe should be understood more as a forum for political discussion (which can also function as a forum for the conclusion of international treaties which then have to be ratified by the contracting states) and not as a legislative organization. However, the Committee of Ministers and the Parliamentary Assembly have also adopted recommendations and resolutions on matters that are subject to private law (on their legal (soft law) effect, see 4. below).

2. Council of Europe treaties in the area of private law

Under the auspices of the Council of Europe, a total of 210 treaties (as of 15 June 2011) have been concluded, some 25 of which relate exclusively to private law—although most of these were concluded between 1960 and 1980. Other treaties have at least an indirect relationship to private law. For example, Art 24 of the Convention on Human Rights and Biomedicine of 4 April 1997 provides for a claim to compensation for victims of a violation of the rights enshrined therein. No specific agenda is discernible with regard to the Council of Europe’s Conventions relating to private law. They mostly concern limited subject-areas, eg the Convention on the Liability of Hotelkeepers concerning the Property of their Guests of 17 December 1962. The Council of Europe’s activities in the area of private law began to decline at the same time as EC private law started to develop from the 1980s onwards.

The subject-areas covered by Council of Europe treaties range from family and succession law (European Convention on the Adoption of Children of 24 April 1967, revised on 27 November 2008; Convention on the Establishment of a Scheme of Registration of Wills of 16 May 1972; European Convention on the Legal Status of Children born out of Wedlock of 15 October 1975; European Convention on the Exercise of Children’s Rights of 25 January 1996; Convention on Contact concerning Children of 15 May 2003); liability law (European Convention on Compulsory Insurance against Civil Liability in respect of Motor Vehicles of 20 April 1959 (compulsory insurance); Convention on the Liability of Hotelkeepers concerning the Property of their Guests of 17 December 1962; and two Conventions neither of which entered into force, the European Convention on Civil Liability for Damage caused by Motor Vehicles of 14 May 1973 and the European Convention on Product Liability in regard to Personal Injury and Death of 27 January 1973); patent law (European Convention relating to the Formalities required for Patent Applications of 11 December 1953; European Convention on the International Classification of Patents for Inventions of 19 December 1954; Convention on the Unification of Certain Points of Substantive Law on Patents for Invention of 27 November 1963); commercial and financial law (the unsuccessful European Conventions on Foreign Money Liabilities of 11 December 1967 and on the Place of Payment of Money Liabilities of 16 May 1972; the Convention relating to Stops on Bearer Securities in International Circulation of 28 May 1970, which was only ratified by four contracting states); the law of civil procedure (especially arbitration: Agreement Relating to Application of the European Convention on International Commercial Arbitration of 17 December 1962; European Convention providing a Uniform Law on Arbitration of 20 January 1966) to private international law (the—significant—European Convention on Information on Foreign Law of 7 June 1968; the failed European Convention on Certain International Aspects of Bankruptcy of 5 June 1990, with its universal approach to international bankruptcy law; the successful European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 20 May 1980). Both substantive law and procedural law are affected by the European Convention on the Calculation of Time-Limits of 16 May 1972.

3. Areas of special focus

As there is no actual systematic approach as far as the Council of Europe treaties in the field of private law are concerned, this section will discuss four important Conventions by way of example.

Although the European Convention on Compulsory Insurance against Civil Liability in respect of Motor Vehicles of 20 April 1959 did not invent compulsory third party insurance as such (in some European states it has been in existence since the 1930s), the introduction of this kind of insurance was established as an international obligation of the contracting states and the key provisions on compulsory insurance were at least partially harmonized. However, the Council of Europe provisions have been superseded in the EU by the directives on third party insurance for motor vehicles, now codified in Dir 2009/103.

The Convention on the Liability of Hotelkeepers concerning the Property of their Guests of 17 December 1962 is an early example of the harmonization of European law in an area of relevance to everyday life. The approach is that of a framework Convention with a model law attached as an annex. The contracting states undertake to adopt the model in their legislation, but they have the option of imposing more stringent liability rules on hotelkeepers. The hotelkeeper’s liability does not depend on negligence (the hotelkeeper can only be exonerated by proving that the damage has been caused by the guest or his or her companion or visitor, force majeure or the nature of the property), but liability is in principle limited in amount.

In the area of private international law (PIL), an important treaty is the European (London) Convention on Information on Foreign Law of 7 June 1968. The aim of this treaty providing mutual assistance in legal matters is to enable the courts of the contracting states (only courts are entitled to make requests) to obtain information ‘in an objective and impartial manner’ on the law of another contracting state and then apply that law. The Convention covers civil law, commercial law, the law of civil procedure and the organization of the courts. The reply to the request is normally made by state bodies but may also, depending on the requested state, be made by ‘a private body or a qualified lawyer’ (Art 6). This form of mixed judicial-administrative mutual assistance has its advantages (especially as regards the costs of establishing the provisions of foreign law) but also a number of drawbacks (in some instances the insufficient quality and—in a number of exceptional cases—the questionable objectivity of replies drawn up by authorities). The Council of Europe treaty system has not been able, or has only partially been able, to supersede the methods of proof of foreign law normally used in the contracting states.

Although only ratified by four contracting states (Austria, Liechtenstein, Luxembourg and Switzerland), the European Convention on the Calculation of Time-Limits of 16 May 1972 is groundbreaking nevertheless. This is generally applicable to ‘the calculation of time limits in civil, commercial and administrative matters, including procedure relating to such matters’. Its key distinguishing feature is the greatest possible clarity and simplicity of its application, which is very much to be welcomed in this area. It provides a standard legal definition of the dies a quo (the day from which the time-limit runs) for time-limits expressed in different ways and the dies ad quem (the day on which the time-limit expires).

4. Soft law

The fact that under the Council of Europe Statute the recommendations and resolutions of the Committee of Ministers and the Parliamentary Assembly do not constitute legal rules does not mean they are entirely without any legal impact. On the contrary, they may be instances of international soft law: they are not legally binding, but nonetheless possess in practice a degree of authority and are, accordingly, taken into account in the lawmaking process and, in particular, in decisions of the courts. This soft law characteristic of the texts adopted by the Committee of Ministers and the Parliamentary Assembly can be seen in judgments of the ECtHR (for a clear statement to that effect, see ECtHR No 34503/97 – Demir and Baykara v Turkey, § 75) including in cases of relevance to private law. For example, in the Caroline von Hannover v Germany judgment (ECtHR No 59320/00, § 42, on the limits to freedom of the press when balanced against the right to privacy) the court quoted Parliamentary Assembly Resolution 1165 (1998) on the right to privacy; in the Wagner v Luxemburg judgment (ECtHR No 76240/01 § 42, on a refusal to recognize a Peruvian adoption order) it quoted Parliamentary Assembly Recommendation 1443 (2000) on ‘International adoption: respecting children’s rights’. Similarly, in the E.B. v France judgment (ECtHR No 43546/02, § 29, on discrimination against homosexuals with regard to adoption), the Court quoted the draft of the new European Convention on the Adoption of Children submitted by the Committee of Ministers and aimed at liberalizing the rules of adoption (for the states that ratify it).

Literature

Karl Carstens, Das Recht des Europarats (1956); Walter Ganshof van der Meersch, Organisations européennes, vol I (1966) 197; Barry J Rodger and Juliette van Doorn, ‘Proof of Foreign Law: The Impact of the London Convention’ (1997) 46 ICLQ 151; Bruno Haller, Hans Christian Krüger and Herbert Petzhold (eds), Law in Greater Europe. Towards a Common Legal Area, Studies in Honour of Heinrich Klebes (2000); Florence Benoît-Rohmer and Heinrich Klebes, Council of Europe Law—Towards a Pan-European Legal Area (2005); Reinhard Zimmermann, ‘Innkeepers’ Liability—Die Entwicklung der Gastwirtshaftung in England’ in Festschrift Claus-Wilhelm Canaris (2007) 1435; Emmanuel Decaux and Marina Eudes, ‘Conseil de l’Europe. Objectifs et structures politiques’ [2010] Jurisclasseur Europe, fascicule 6100; Emmanuel Decaux and Marina Eudes, ‘Conseil de l’Europe. Activités normatives’ [2010] Jurisclasseur Europe, fascicule 6110.

Retrieved from Council of Europe (Harmonization of Private Law) – Max-EuP 2012 on 02 October 2022.

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