CYIL Vol. 7, 2016

PAVEL BUREŠ CYIL 7 ȍ2016Ȏ discrepancy that the Brussel Convention 13 was ratified ‘only ’ by four of ten member States and thus was not in force. While in the Tyrer case the European consensus can be regarded more as a floppy argument (and thus not so crucial in itself ), the European consensus concept in the Marckx case forms a solid basement for the decision of the Court. Later, different cases 14 have been decided by the Court with reference to European consensus, expressly mentioned or not. The Court supports its reasoning on different formulations expressing some evolution in member States of the Council of Europe; and so e.g. – in the majority of member States of the Council of Europe, 15 the solution for the protection is not concluded in the majority of contracting parties to the Convention, 16 European consensus, 17 on the European level, the Court finds that the question about the legal nature of an embryo/fetus is not a subject of consensus, 18 no general accepted approach among contracting States, 19 no state of European and international consensus, 20 forming a consensus between contracting parties to the Council of Europe 21 common denominator. 22 While in pioneer cases where this phenomenon was used, the Court speaks more about commonly accepted standards or a common approach in member States of the Council of Europe, in its later judgments it refers (only) to the concept of European consensus, 23 or consensus among contracting States of the Council of Europe. European consensus, as a specific technique of interpretation, served the Court to answer different questions dealing with the interpretation of different rights under the protection of the Convention. 3. Areas of application A usage of European consensus, as a specific technique of interpretation of the Convention, is not limited to particular article/s of the ECHR. Rather it is open to all legal notions with a different possibility of various interpretations. As already stated, we could see that European consensus is not limited to so-called relative rights (Arts. 8 to 11 of the Convention), where the interference of governmental authorities might 13 Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children. 14 Luzius Wildhaber includes among the pioneer cases, alongside Tyrer and Marckx, the Dudgeon case as well. 15 ECtHR judgment in the case Dudgeon v. United Kingdom , n° 7525/76, § 60. 16 ECtHR judgment in the case Vo proti Francii , § 82, 53924/00. 17 Ibid . 18 Ibid ., § 84. 19 In the argumentation of the government of the United Kingdom in the judgment in the case Goodwin v. United Kingdom , § 64, n° 28957/95. 20 Ibid ., § 80. 21 Ibid ., § 84. 22 ECtHR judgment in the case Fretté v. France , 36515/97 from 26 February 2002. 23 Statistically, the term ‘European consensus’ has been used in one third of the concerned cases.

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