Harmonisation Through the Back Door?: The Impact of the European Convention on Human Rights on National Private Law

Summary

1. INTRODUCTION

When we talk about harmonisation of private law in Europe, we are usually referring to the framework of European Union (EU) law and its impact on the Member States’ domestic legal systems. In other words, we focus on what is known as ‘EU private law’, i.e. the creation of directly applicable uniform law through regulations under Article 288(2) of the Treaty on the Functioning of the European Union (TFEU), and the approximation of national private law through directives under Article 288(3) TFEU. Undoubtedly, EU law has an enormous impact on the Member States ‘national laws, and plays a key role in shaping a common European legal order. This chapter, however, deals with a different topic: it seeks to explore to what extent the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) also contribute to the ‘Europeanisation’ of private law. It will argue that, if the institutional framework of the EU represents the ‘main door’ for the harmonisation of private law in Europe, the ECHR may be described, in some circumstances, as the often overlooked ‘back door’.

In hindsight, it may appear surprising that the main promoter of legal harmonisation in Europe has been the EU rather than the Council of Europe, the organisation that gave birth to the ECHR. The European Economic Community, the predecessor of the EU, started off as a marketoriented organisation with the primary aim of furthering economic integration among European states. By contrast, the Council of Europe, established in 1949 in the immediate aftermath of World War II, had a broader focus from the outset. It sought to ‘achieve a greater unity between its members’, placing a great emphasis on the protection of human rights and fundamental freedoms, as well as the rule of law and democracy. The divergent approaches underlying the two organisations are also reflected by the fact that it was only one year after the foundation of the Council of Europe that the ECHR was adopted. Thus, the Convention was – and still is – at the very heart of that organisation.