Appendix 2 – Comments of the Bureau of the
European Committee on Legal Co-operation (CDCJ)
1. Following the
adoption by the Parliamentary Assembly of
Recommendation 1798 (2007) on respect for the principle of gender equality in civil
law, the Committee of Ministers decided to communicate it to the European
Committee on Legal Cooperation (CDCJ), for information and possible
comments by 15 October 2007.
2. The Bureau of the CDCJ took note of the recommendation of
the Parliamentary Assembly and underlined that it covers many areas
of concern to the CDCJ.
3. The Bureau of the CDCJ welcomes the recommendation of the
Assembly to invite member states to review and, if necessary, amend
their legislation in civil law in order to foster the principle
of gender equality. The Bureau of the CDCJ agrees that inequalities
in matters of family law, including marriage and divorce, manifest
themselves in various forms and concern women more frequently, although
they also affect men in some legislation and administrative and
judicial practices.
4. As regards the minimum age for marriage, the Bureau of the
CDCJ notes that the explanatory memorandum to this recommendation
refers, in paragraph 8, to Assembly
Resolution 1468 (2005) that requests member states of the Council of Europe
to fix at or raise to 18 years the minimum statutory age for marriage
for women and men. Indeed, the CDCJ, in its Opinion on Parliamentary
Assembly
Recommendation 1723
(2005) on forced marriages and child marriages, presented to
the Committee of Ministers (see CM/AS(2006)Rec1723 final), noted
the actual changes in Europe in this respect and identified a clear
tendency to fix this age for both men and women at 18 years.
5. The Bureau of the CDCJ shares the observation of the Parliamentary
Assembly concerning the outdated character of domestic legislation
of some of the Council of Europe member states obliging women to
bear their husband’s surname. The Bureau of the CDCJ recognises
that it is the fundamental right of a woman to retain her maiden
name upon marriage, as guaranteed under the provision of Article
8 (right to respect for private and family life), combined with
Article 14 (prohibition of discrimination) of the European Convention
on Human Rights (ECHR) (Ünal Tekeli v.
Turkey, judgment of 16 November 2004, paragraph 68).
This principle is also affirmed in the Committee of Ministers’ Resolution
(78) 37 on equality of spouses in civil law, which in paragraph
6 recommends member states not to require by law a spouse “to change
[…] family name in order to adopt the family name of the other spouse”.
6. The explanatory memorandum of
Recommendation 1798 (2007) identifies, in paragraphs 14 and 15, the inequalities
which are to the detriment of women regarding the financial consequences
of and the grounds for divorce, and which still survive in the domestic
legislation of a few member states. The Bureau of the CDCJ stresses
that legal provisions granting privileges for men in the event of
divorce violate the principle of gender equality (
Refah Partisi (The Welfare Party) and Others
v. Turkey, judgment of 13 February 2003, paragraph 128).
The Bureau of the CDCJ emphasises the need to urge member states
to amend, where necessary, their legislation in order to suppress
any discrimination between the spouses in the case of divorce.
7. Regarding paragraph 4 of the recommendation and the discrimination
between women and men in the passing on of the parents’ surname
to children, standard-setting activities have already been carried
out in this field by the CDCJ. Further to the Committee of Ministers’
authorisation (890th meeting, Document CM(2004)106 rev), the “White
Paper on the principles concerning the legal consequences of parentage”, prepared
by a working party of one of the subordinate bodies of the CDCJ,
the Committee of Experts on Family Law, was published. The White
Paper, in principle 27/2, sets out that any system for the choice
of family name of the child should not result in “an unjustified
discrimination of one of the parents”. The Bureau of the CDCJ notes
that principle 27 of the White Paper refers to paragraph 17 of Resolution
(78) 37 on equality of spouses in civil law, which gives parents
the option of choosing which surname to attribute to their child.
8. The explanatory memorandum to the recommendation notes, in
paragraph 16, the lack of legal provisions in some states for a
woman to challenge her husband’s legal paternity. The White Paper,
in principle 8/2, lays down that a right to establish paternal affiliation
shall be given to the child and that it may also be given to the
mother and/or the person claiming to be the father. The Bureau of
the CDCJ is of the view that this possibility, if given to one of
the parents (or claiming parent), should also be given to the other
in order to avoid discrimination against one of the parties.
9. The recommendation refers in paragraph 2 to the practice,
in some cases, of discrimination against men concerning the exercise
of parental rights. The Bureau of the CDCJ emphasises that recent
Council of Europe conventions concerning family law contain provisions
to ensure equal application of parental rights for both genders.
Article 4.1 of the Council of Europe Convention on Contact concerning
Children (ETS No. 192) enables both parents to obtain and maintain
regular contact with their child. In the draft European convention on
the adoption of children (revised), the consent of the father of
the child is also required in order that an adoption may be granted,
whether the child was born in or out of wedlock. This is not the
case in the 1967 version of the convention, which refers in Article
5, paragraph 1 to “the consent of the mother and, where the child
is legitimate, the father”.
10. The Bureau of the CDCJ shares the concern of the Parliamentary
Assembly concerning the application of discriminatory rules of foreign
law by member states under bilateral and multilateral treaties.
The Bureau of the CDCJ recognises the fundamental nature of equality
between spouses, as enshrined in Article 5 of Protocol No. 7 to
the ECHR. This principle is also affirmed by the European Court
of Human Rights in its Grand Chamber decision concerning Refah Partisi (The Welfare Party) and Others
v. Turkey (judgment of 13 February 2003, paragraph 128),
which condemns “rules permitting discrimination based on the gender
of the parties concerned, as in polygamy and privileges for the
male sex in matters of divorce and succession”. The Bureau of the
CDCJ supports the call of the Parliamentary Assembly to urge member
states to take measures, where necessary, in order to eradicate
discrimination linked to rules of foreign law arising from their
commitments under bilateral and multilateral treaties.
11. As regards the call of the Parliamentary Assembly to adopt
a new protocol to the ECHR, in order to secure gender equality as
a positive human right with pre-eminence over domestic legislation
and any provision of private international law agreements and conventions,
in the opinion of the Bureau of the CDCJ, this question is premature
and could be considered by the Committee of Ministers in due course.
