Human Rights and Fundamental Rights (ChFR and ECHR)
The distinction between human rights and fundamental rights is initially a question of terminology. In the context of European private law, it is sensible to differentiate according to the source of the rights concerned. Rights derived from international law are human rights (Universal Declaration on Human Rights of 10 December 1948; International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both of 16 December 1966, and—the most important regional Convention—the European Convention on Human Rights (ECHR) of 4 November 1950). Fundamental rights, on the other hand, are derived from domestic (especially constitutional) law or, as far as the legal order of the European Union is concerned, its constitutional principles. Whether there is any substantive difference between fundamental and human rights then depends in each case on the contents of the catalogues of fundamental rights and human rights.
Among the rights guaranteed by the ECHR, the following are particularly relevant in terms of substantive private law: the right to respect for private and family life (Art 8), the right to marry (Art 12) (marriage), the equal rights of spouses (Art 5 of Protocol no 7), freedom of expression (Art 10) and the guarantee of the right to enjoy property (Art 1 of Protocol no 1), to a certain extent freedom of belief, conscience or religion (Art 9) and freedom of assembly (Art 11). According to Art 14, the principle of equality (discrimination (general)) is limited to rights guaranteed in the Convention (or its protocols). A general ban on discrimination extending to other rights was introduced into the Convention by Protocol no 12 (of 4 November 2000), but this has so far only been ratified by 18 contracting states, including seven members of the EU (as of 15 June 2011). In addition to these substantive law guarantees, the right to a fair trial (Art 6) is especially important.
In the case law of the European Court of Human Rights (ECtHR), the Marckx case (No 6833/74 – Marckx v Belgium) was a milestone: it was the first case before the ECtHR concerning the application of rules of domestic private law (family and inheritance law), and the Court established in its judgment that discrimination against children born out of wedlock by the then-existing provisions of the Belgian Civil Code constituted a violation of the right to respect for family life, to non-discrimination in the exercise of this right and to the protection of property. Although the Court recognized that this form of discrimination was regarded as normal in many European legal systems when the Convention was concluded in 1950, the Court said it was no longer compatible with the Convention ‘in the light of present-day conditions’. In that judgment, the Court did not share the view eloquently stated by the British judge Sir Gerald Fitzmaurice in his dissenting opinion that the right to respect for family life must be given a restrictive interpretation in light of historical developments and the genesis of the ECHR and can only be applied to state harassment (‘the whole gamut of fascist and communist inquisitorial practices’) but should not apply to family relationships under private law. Since then, this ‘evolutionary’ or ‘dynamic’ interpretation of the ECHR has shaped the Court’s judgments, including in cases involving private law.
The legal system of the EU is characterized by the parallel validity of several guarantees of fundamental rights. Article 6(3) TEU and, even before the adoption of these provisions, the jurisprudence of the European Court of Justice (ECJ) recognized as general principles of EU law the fundamental rights arising under the ECHR and the constitutional traditions common to the Member States. Unlike (all) its Member States, however, the EU has not yet acceded to the ECHR (see the ECJ’s opinion on accession to the ECHR rejecting that proposal on grounds of primary law, Opinion 2/94  ECR I-1759). The EU’s accession is provided for under the Treaty of Lisbon (Art 6(2) TEU). With the entry into force of the Lisbon Treaty on 1 December 2009, the European Union’s Charter of Fundamental Rights (ChFR) has been added to the guarantees of fundamental rights that are enshrined in (and continue to be provided by) the ECHR and in general legal principles. Initially the Charter was ‘solemnly’ proclaimed by the EU institutions on 7 December 2000 but had no actual legal basis, with the result that it led a shadowy existence in the EU’s legal system (ECJ Case 540/03 – Parliament v Council  ECR I-5769 para 38, concluding, at the time, that the charter is not a binding legal instrument but rather a reaffirmation of the general principles of the Community). According to Art 6(1) TEU, the charter—as adapted on 12 December 2007—‘shall have the same legal value as the Treaties’, thus acquiring the status of primary law, with the proviso that it applies to Poland and the United Kingdom only insofar as it is in accordance with those countries’ national law.
In terms of content, the ChFR first of all adopts the human rights guarantees of the ECHR. According to Art 52(2) ChFR, these rights have the ‘same meaning and scope’ as those laid down by the ECHR. This extends in principle to the interpretation of the relevant articles of the ECHR by the ECtHR, so that the ChFR is not particularly original in overall concept. However, it does comprise a number of fundamental rights that go beyond the ECHR and often originate from the ECJ’s jurisprudence on the general principles of Union law. The following might become relevant for the field of private law: human dignity (Art 1 ChFR), freedom to choose an occupation and freedom to run a business (Arts 15 and 16), general equality before the law (Art 20), the rights of the child guaranteed by Art 24 (following on from the UN Convention on the Rights of the Child of 20 November 1989), the economic and social rights arising from Arts 27 ff, and perhaps also the rights to environmental protection and consumer protection (Arts 37 and 38) which are worded in more programmatic terms.
The scope of the ChFR is, according to Art 51(1), limited: its provisions ‘are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’. The objective is consequently not the removal of constitutional guarantees of individual states or the removal of the guarantees provided by the ECHR. The ChFR is starting to play a prominent role in the ECJ’s jurisprudence, but its actual importance for private law will depend on the extent to which provisions governing the latter are established by EU legal acts in the future. Nothing can be said with certainty about this at the moment. At any rate, with respect to private law the ECHR will for the time being remain the most important functional equivalent of a pan-European catalogue of basic rights.
2. Status within the legal system
The ChFR became valid as a set of legal rules when the Lisbon Treaty came into force. It did so as part of EU primary law. The general principles relating to the protection of fundamental rights already had this status in EU law (as did, therefore, the ECHR) under the terms of Art 6(2) EU and in the jurisprudence of the ECJ (ECJ Joined Cases C-402/05 P and C-415/05 P – Kadi v Council and Commission  ECR I-6351 paras 278 ff: fundamental rights are among the ‘constitutional principles of the EU Treaty’ which also take precedence over obligations imposed by an international agreement). The entry into force of the Lisbon Treaty did not affect this.
The status of the ECHR in the legal systems of the contracting states is not regulated by the ECHR itself, which, as a classical international treaty, leaves it entirely up to the contracting states to enforce its provisions at the domestic level. Neither the domestic validity of the ECHR nor its precedence over domestic law is part of its normative content, and constitutional provisions differ accordingly. For example, the ECHR is given precedence over national statutory law in such countries as France, Belgium, Luxembourg or Switzerland (in some cases—according to some judgments in Belgium and Luxembourg—even over national constitutional law). In Austria, the ECHR has had constitutional status since 1964. In Germany, on the other hand, formally it only has the status of an ordinary federal law. In the United Kingdom, the ECHR was not incorporated into domestic law for a considerable time, this being finally brought about by the Human Rights Act 1998.
The actual importance of the ECHR for national (private) law differs from one contracting state to another. It depends both on the hierarchy between the ECHR and national statute law and, indirectly, on the respective importance of constitutional courts within the various contracting states: in states with a weak (or non-existent) tradition of constitutional review (such as the United Kingdom and, until very recently, France) the ECHR unsurprisingly has a much stronger significance for domestic lawyers than in a state like Germany, where the Basic Law (Grundgesetz, Constitution) and the case law of the Federal Constitutional Court (Bundesverfassungsgericht) have long held a dominant position. Political considerations, on the other hand, would appear to play a subordinate role, at least in the practice of the courts (in some countries, however, eg France, the growing influence of the ECHR on national law is a contentious issue: in addition to those who advocate a system of private law that is as free as possible from influence by public bodies—such as the distinguished civil law professors Jean Carbonnier (1908–2003) or Philippe Malaurie—criticism is also regularly expressed by Eurosceptics such as Yves Lequette; in England Lord Hoffmann has gone on record as criticizing the ‘constitutional inappropriateness’ of a ‘foreign court’—the EctHR—adjudging on national matters).
3. Review mechanisms and the issue of ‘third party applicability’ (Drittwirkung) of fundamental rights
The ECtHR examines the facts of a case involving an allegation of a human rights violation by employing one or more of the following review mechanisms which depend on the particulars of the case (see ECtHR No 76240/01 – Wagner v Luxembourg): (1) the interference approach examines first whether there was a legitimate aim for the interference with a right—an exhaustive enumeration of these aims is provided in the ECHR—and then the proportionality of that interference under the prerequisite that it must have been ‘necessary in a democratic society’; (2) also, positive obligations on the state have in many fields been developed by the ECtHR, involving a duty imposed on the contracting states to ensure the protection of human rights organizationally and in terms of judicial procedure and to prevent attacks, including by private individuals, on legal positions protected by human rights provisions. However, such analysis potentially allows a broad-based justification of state action or inaction in connection with the state’s obligations to provide protection. Apart from the preceding two mechanisms, there are ancillary considerations: (3) the guarantee of equality in the enjoyment of human rights is enshrined in Art 14, and the ECtHR sometimes (with questionable justification) has recourse to it as a duplication of the human rights guaranteed under other Convention provisions; and in certain cases (4) the postulation of procedural obligations that are specifically assigned to a right and whose non-observance can constitute a violation of the right to a fair trial (Art 6) irrespective of the existence of a breach of substantive law.
All these review mechanisms are in principle applicable to provisions of both private and public law (see the Marckx judgment mentioned above in the introduction (s 1)). However, the application of fundamental rights to matters of private law raises the question of whether the rights guaranteed by the ECHR through commitments under international law not only apply to the contracting states, but can also be binding on private individuals (sometimes referred to by the German term Drittwirkung, or third party applicability). With reference to the obligations of states to provide protection (obligations that have been recognized in the case law of the ECtHR), it is easy to construct a duty on the part of the contracting states to also guarantee protection under private law against breaches of rights by other people (see eg ECtHR No 59320/00 – Caroline von Hannover v Germany: necessity for contracting state to assert the right to respect for private life against organs of the press). While the principle of the third party applicability of the ECHR can thus be considered to have its basis in the duties of the contracting states, the case law of the ECtHR does not provide any indication of the way in which that principle impacts on domestic law (ie ‘direct’ third party applicability based on the notion of the priority of the normative effect of the ECHR or ‘indirect’ third party applicability that—via the general provisions of private law—helps to bring about a conciliation between public-law requirements and private-law solutions). The ECtHR does not have to answer this question because it leaves it up to the law of the contracting states to deal with the entire issue of implementing the provisions of the ECHR, and it is thus the responsibility of the domestic courts to provide the answer. The possible solution via indirect third party applicability that has gained acceptance in German basic rights theory certainly has the advantage of the simultaneous recognition of the priority of fundamental rights and the autonomy of private law, and this advantage is also worth considering in the case of European law. However, in some French judgments in particular there is a countervailing trend towards the direct application of rights enshrined in the ECHR (eg when checking the contents of contracts: Cass. civ. 3e, 6 March 1996, D. 1996, 167; Cass. soc. 12 January 1999, D. 1999, 645; see on the impact of freedom of religion on the exercise of contractual rights arising from a rental agreement Cass. civ. 3e, 18 December 2002, Bull. civ. III, no 262).
With the entry into force of the ChFR, the question of its third party applicability before the domestic courts and the ECJ will inevitably arise, and the solution in the form of ‘indirect third party applicability’ can be seen as having a good chance of gaining acceptance in the application of the ChFR. As far as the ChFR is concerned, the answer to the question concerning the (direct or indirect) nature of the third party applicability will presumably be given by the ECJ itself in the preliminary reference procedure: the possibility that the ECJ might leave it to domestic law to resolve this important issue for the further development of EU private law would conflict with the principle of the uniform application of EU law.
4. A state’s ‘margin of appreciation’
The most important feature of the ECtHR’s monitoring of compliance with human rights is the ‘margin of appreciation’ that is granted to the contracting states and varies according to the subject matter of the case. It includes establishing the legitimate aim pursued by the state in taking action or refraining from taking action and to the measures chosen in this regard. There is a margin of appreciation both for the national legislature and for the national courts whose task it is to interpret and apply the existing laws. However, state measures are in any event subject to ‘European scrutiny’ (ECtHR No 5493/72 – Handyside v United Kingdom, Series A No 24, §§ 48 ff; and further cases). The ‘margin of appreciation’ doctrine serves to define a variable density of supervision. It derives its justification from two basic ideas. First, it is a manifestation of the idea of subsidiarity which the ECHR contains as an instrument of international law vis-à-vis domestic law (the balance achieved in an individual case between the state’s margin of appreciation and supervision at the European level can be a matter of dispute). Secondly, however, it is also a manifestation of judicial restraint as towards the democratically legitimated domestic legislature. The ‘margin of appreciation’ is thus both a national and a legislative margin, the latter applying to the domestic courts in their application of the ECHR as it applies to the ECtHR itself (this is especially clear in the judgments of the French courts on the ECHR: Conseil d’Etat 3 July 1998; Rec. Lebon 1998, 288; more subtly differentiated in UK case law: In Re P  UKHL 38 (HL)).
The extent of the margin of appreciation depends on the one hand on the human rights concerned (freedom of expression, for example, is subject to stricter European scrutiny than the guarantee of the right to enjoy property) and, on the other hand, on the existence or non-existence of a European consensus in the relevant area of law. In particular, in cases that ‘(give) rise to sensitive moral and ethical issues’ (such as those involving family law—see ECtHR No 6339/05 Evans v United Kingdom, concerning a woman’s right to in-vitro fertilization after her partner had revoked his consent), the recognition of a state’s margin of appreciation can also be politically important for the acceptance of the ECtHR’s case law.
A few examples will serve to illustrate the extent to which private law has been impacted by the development of ECHR case law. A fuller discussion cannot be provided here.
Provisions of family law (family; European family law (PIL); family law (international)) are examined by the ECtHR in particular to check that they are compatible with the right to respect for family life and, as the case may be, the right not to be subject to discrimination. However, it can hardly be the sense and purpose of the ECHR to bring about the pan-European harmonization of fundamental principles of family law, and it is especially in this area that the ‘state’s margin of appreciation’ has an impact. Homosexuality is an example: the principle of non-discrimination extends to a person’s sexual orientation (application to the parents’ right of custody: ECtHR No 33290/96 – Salgueiro da Silva Mout v Portugal; to the right to succeed to a tenancy upon the death of one’s partner: No 13102/02 – Kozak v Poland). Nonetheless, the ECtHR decided that it could not be inferred from the right to marry (Art 12) (marriage) and the right to be free from discrimination (Art 14) that persons (including transsexuals) have a right to enter into a same-sex marriage (same-sex relationships) (ECtHR No 42971/05 – Parry v United Kingdom; No 30141/04 – Schalk and Kopf v Austria). The Court initially ruled that homosexuals had no right of adoption (ECtHR chamber judgment No 36515/97 – Fretté v France), but the Grand Chamber of the ECtHR then affirmed that they did have this right—at least in the case of those contracting states in which adoptions by individuals are allowed in principle (ECtHR No 43546/02 – EB v France).
Property law (property law (international)) is naturally affected by the right to the protection of property rights (property rights, protection of) (ECtHR No 44302/02 – JA Pye (Oxford) Ltd v United Kingdom: the application of the statute of limitations (prescription) by the national courts constitutes an interference with the rights protected by Art 1 of Protocol No 1, although justified in that particular case).
There is a considerable body of cases involving the press or expressions of opinion. Particularly interesting in this context are the cases in which a balance has to be struck between the conflicting interests of the persons concerned and protected under human rights law: violation of the right to the protection of private life (Art 8) owing to the ECtHR’s perception of insufficient protection being afforded to the right of people in the public eye to control the use of their own image (ECtHR No 59320/00 – Caroline von Hannover v Germany), and interference with freedom of the press (Art 10) resulting from an injured party’s claim for injunctive relief or damages (ECtHR No 34315/96 – Krone Verlag v Austria).
The law of civil procedure in all contracting states is shaped to a considerable extent by the case law on Art 6 (right to a fair trial). The guarantee of access to a court, the examination of ‘objective impartiality’, the equality of arms principle and the right to present one’s case to a court and be given reasons for a decision are all rights that exist in domestic legal systems, but the ECtHR, owing to its supranational composition, does not have much patience with idiosyncratic exceptions provided for by national law which constitute anomalies from the European perspective. In the context of Art 6, the ‘state’s margin of appreciation’ only plays a minor role. Rather, the courts lay down a—uniformly high—European standard of a fair trial.
In private international law, the ECtHR has focused up to now on the recognition of status judgments. The Pellegrini v Italy judgment (ECtHR No 30882/96) established an (indirect) violation of the right to a fair trial by Italy, whose courts had recognized the judgment of an Ecclesiastical court (‘Vatican’ court, § 40) in a case concerning the validity of a marriage, when the judgment failed to meet the European procedural standards. In legal literature, the Pellegrini judgment is sometimes described as an instance of the intervention of a European ‘public policy’, but caution is advised with regard to the use of this term. In contrast to the EU legal system, there is no separate ECHR (or Council of Europe (institutional aspects)) legal order, and public policy remains a proviso in the context of national rules of private international law although it may draw its inspiration from the value system of the ECHR.
An obligation to recognize foreign status judgments can, depending on the situation in an individual case, be held to exist by virtue of the right to respect for existing family circumstances (Art 8 ECHR; see ECtHR No 76240/01 – Wagner v Luxembourg: violation of the Convention due to the refusal of the Luxembourg courts to recognize a Peruvian court’s adoption judgment where the solution under Peruvian private international law was not compatible with Luxembourg conflict of laws rules). Beyond the problem of the recognition of judgments, the Wagner case has the potential for ensuring the case-specific recognition of a status grounded in a legal transaction regardless of national conflict of laws rules. Here there can conceivably be repercussions for cases involving areas of the law other than family law matters. In other cases the ECtHR based an obligation to recognize a foreign status judgment simply on the right to a fair trial (Art 6): see ECtHR No 18648/04 – McDonald v France (US divorce, although the obligation was denied in this specific case); or both on the right to respect for family life and on the right to a fair trial: No 56759/08 – Negrepontis-Giannisis v Greece, disapproving of the non-recognition, on the grounds of Greek public policy, of an adoption abroad by an Orthodox monk.
Dean Spielmann, L’effet potentiel de la Convention européenne des droits de l’homme entre personnes privées (1995); Europäische Menschenrechtskonvention und Europäisches Privatrecht, ‘Tagung im Max-Planck-Institut für ausländisches und internationales Privatrecht’ (1999) 63 RabelsZ 409; Anne Debet, L’influence de la Convention européenne des droits de l’homme sur le droit civil (2002); Peter J Tettinger and Klaus Stern (eds), Europäische Grundrechte-Charta (2006); F Sebastian M Heselhaus and Carsten Nowak (eds), Handbuch der Europäischen Grundrechte (2006); Rainer Grote and Thilo Marauhn (eds), EMRK/GG Konkordanzkommentar (2006); Andrew Clapham, Human Rights Obligations of Non-State Actors (2006); Jürgen Basedow and Friedrich Wenzel Bulst, ‘Der Eigentumsschutz nach der EMRK als Teil der Europäischen Wirtschaftsverfassung‘ in Festschrift Reiner Schmidt (2006) 3; Jean-François Renucci, Traité de droit européen des droits de l’homme (2007); Frédéric Sudre and others, Les grands arrêts de la Cour européenne des droits de l’homme (4th edn, 2007); David Harris, Michael O’Boyle, Edward Bates and Clara Buckley, Harris, O’Boyle, Warbrick: Law of the European Convention on Human Rights (2nd edn, 2009); Leonard Hoffmann, ‘The Universality of Human Rights’ (2009) 125 LQR 416.