214 / 536
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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.