Committee of Ministers

Comité des Ministres

EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ)

Abridged Report of the 71^st meeting

(45^th meeting as a Steering Committee)

(Strasbourg, 18 – 31 May 1999)

LISTS OF ITEMS DISCUSSED AND DECISIONS TAKEN

1. The European Committee on legal co-operation (CDCJ) met in Strasbourg from 18 to 21 May 1999. The list of participants and the agenda appear in Appendices I and II respectively.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDCJ invited the Committee of Ministers to adopt the text of the draft Recommendation on the avoidance and reduction of statelessness and to authorise the publication of its explanatory memorandum (see item 7 of the agenda and the Addendum to this report).

ITEMS SUBMITTEED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

3. The CDCJ forwarded for the attention of the Committee of Ministers its opinion on Parliamentary Assembly Recommendations 1271 (1995) and 1362 (1998) on discrimination between women and men in the choice of a surname and the passing on of parents' surnames to children (see item 11.b of the agenda and Appendix IV to this report).

4. The CDCJ invited the Committee of Ministers to note:

a. that, following a request of the Multidisciplinary Group on corruption (GMC), the CDCJ forwarded to the GMC its opinion on the text of the draft Civil Law Convention on corruption (see item 6 of the agenda and Appendix III);

b. that it had authorised the publication of the report on the status of public officials in Europe (see item 8 of the agenda and CDCJ (99) 39);

c. the discussions of the CDCJ concerning the priority nature of its work and the need to ensure the availability of sufficient resources and structures to enable it to carry out as rapidly as possible its programme of activities (see item 10 of the agenda);

d. the procedure adopted by the CDCJ concerning the examination of Conventions, Agreements and Recommendations falling within its competence and the application of this procedure to Recommendation No R (91) 9 on emergency measures in family matters (see items 11.a and 14 of the agenda);

e. its discussions concerning public access to documents and that the CDCJ report is not a restricted document (see item 12 of the agenda).

5. The CDCJ considered

a. the work carried out by Committees under its authority (see item 5 of the agenda);

b. the preparation of the 22^nd and 23^rd Conferences of the European Ministers of Justice, the 14^th Colloquy on information technology and law in Europe, the 1^st European Conference on nationality (see item 9 of the agenda);

c. the draft Recommendation on a European policy on access to archives and agreed to prepare an opinion on the draft at its next meeting (see item 18 of the agenda).

6. The CDCJ took note of:

a. the results of the 5^th European Conference on family law on civil law aspects of emerging forms of registered partnerships and authorised the publication of the proceedings of the Conference (see item 9.iv of the agenda);

b. information concerning other legal work carried out within the Council of Europe, including, for the fields for which the CDCJ is responsible, legal co-operation with the countries of Central and Eastern Europe and with Japan and the work of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (see item 15.a of the agenda);

c. information concerning the work being carried out by the European Union in the field of judicial co-operation in civil law matters, the International Commission on civil status (CIEC) and UNIDROIT (see item 15.b of the agenda);

d. the setting up of an Internet website for the CDCJ (see item 13 of the agenda).

7. The CDCJ decided to hold its next meeting during the week beginning 6 December 1999 (see items 14, 16 and 17 of the agenda).

8. Finally the CDCJ invited the Committee of Ministers to take note of this report as a whole.

APPENDIX I

LIST OF PARTICIPANTS

ALBANIE/ALBANIA:

ANDORRE/ANDORRA

AUTRICHE/AUSTRIA

BELGIQUE/BELGIUM:

BULGARIE/BULGARIA

CROATIE/CROATIA

CHYPRE/CYPRUS:

REPUBLIQUE TCHEQUE/CZECH REPUBLIC

DANEMARK/DENMARK:

ESTONIE/ESTONIA:

FINLANDE/FINLAND:

FRANCE:

GEORGIE/GEORGIA:

ALLEMAGNE/GERMANY:

GRECE/GREECE :

HONGRIE/HUNGARY:

ISLANDE/ICELAND:

IRLANDE/IRELAND:

ITALIE/ITALY:

LETTONIE/LATVIA:

LIECHTENSTEIN:

LITUANIE/LITHUANIA:

LUXEMBOURG:

MALTE/MALTA:

MOLDOVA:

PAYS-BAS/NETHERLANDS:

NORVEGE/NORWAY:

POLOGNE/POLAND:

PORTUGAL

ROUMANIE/ROMANIA

FEDERATION DE RUSSIE/RUSSIAN FEDERATION:

SAINT-MARIN/SAN MARINO

SLOVAQUIE/SLOVAKIA:

SLOVENIE/SLOVENIA:

ESPAGNE/SPAIN:

SUEDE/SWEDEN:

SUISSE/SWITZERLAND:

"L'EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE"/"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

TURQUIE/TURKEY

UKRAINE:

ROYAUME-UNI/UNITED KINGDOM:

ASSEMBLEE PARLEMENTAIRE/PARLIAMENTARY ASSEMBLY

COMMISSION DES QUESTIONS JURIDIQUES ET DES DROITS DE L'HOMME DE L'ASSEMBLEE PARLEMENTAIRE/COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS OF THE PARLIAMENTARY ASSEMBLY:

COMMUNAUTE EUROPEENNE/EUROPEAN COMMUNITY:

Commission:

OBSERVATEURS AUPRES DU CONSEIL DE L’EUROPE/OBSERVERS WITH THE COUNCIL OF EUROPE:

SAINT-SIEGE/HOLY SEE

CANADA

JAPON/JAPAN:

ETATS-UNIS D'AMERIQUE/UNITED STATES OF AMERICA:

OBSERVATEURS AUPRES DU COMITE/OBSERVERS WITH THE COMMITTEE:

ARMENIE/ARMENIA:

AZERBAIDJAN/AZERBAIJAN:

BELARUS:

BOSNIE ET HERZOGOVINE/BOSNIA AND HERZEGOVINA:

ORGANISATIONS INTERNATIONALES INTERGOUVERNEMENTALES/ INTERNATIONAL INTERGOVERNMENTAL ORGANISATIONS:

COMITE CONSULTATIF JURIDIQUE ASIO-AFRICAIN/ASIAN AFRICAN LEGAL CONSULTATIVE COMMITTEE:

COMMISSION INTERNATIONALE DE L'ETAT CIVIL/INTERNATIONAL COMMISSION ON CIVIL STATUS:

COMMISSION DU DROIT INTERNATIONAL DES NATIONS-UNIES/INTERNATIONAL LAW COMMISSION OF THE UNITED NATIONS:

CONFERENCE DE LA HAYE DE DROIT INTERNATIONAL PRIVE/THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW:

OCDE/OECD

BUREAU DES INSTITUTIONS DEMOCRATIQUES ET DES DROITS DE L'HOMME/ OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (BIDDH/ODIHR):

UNIDROIT:

COMMISSION DES NATIONS UNIES POUR LE DROIT COMMERCIAL INTERNATIONAL/UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (CNUDCI/UNCITRAL):

CONSEIL DES BARREAUX DE LA COMMUNAUTE EUROPEENNE/COUNCIL OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN COMMUNITY:

SECRETARIAT

M. Guy De Vel, Directeur des Affaires Juridiques; Mme Margaret Killerby, Chef de la Division I, Secrétaire du CDCJ; M. Alexey Kozhemyakov, Chef de la Division II; M. Roberto Lamponi, Chef de la Division Centrale; M. Allard Plate, Chef du Secrétariat de la Commission des questions juridiques et des droits de l’homme de l’Assemblée, Greffe de l’Assemblée; Mlle Marta Requena, Administratrice; M. Rafaël Benitez, Administrateur; M. Gianluca Esposito, Administrateur, Co-Secrétaire du CDCJ; M. Patrick Titiun, Administrateur; M. Jean Claus, Assistant Administratif Principal, M. Lee Hibbard, Assistant Administratif Principal, Mme Brigitte Rall, Secrétaire.

APPENDIX II

AGENDA

1. Opening of the meeting

2. Adoption of the agenda

3. Statement by the Secretariat

4. Decisions of the Committee of Ministers concerning the CDCJ

5. State of work carried out under the authority of the CDCJ and work of Convention Committees of direct interest to the CDCJ

6. Request to the CDCJ

7. Examination and adoption of the draft Recommendation on the avoidance and reduction of statelessness

8. Examination and adoption of the draft Recommendation on the status of public officials in Europe

9.    Conferences and Colloquies in the legal field

10. Intergovernmental programme of activities – Proposals for activities

11.    Operation of Conventions, Agreements and Recommendations falling within

the competence of the CDCJ

12. Public access to CDCJ documents

13. Information concerning the creation of an Internet web-site for the CDCJ

14. Tasks to be given to the Bureau of the CDCJ

15.    Legal work carried out outside the CDCJ

16.    Agenda of the 72^nd meeting of the CDCJ

17. Calendar of future meetings

18. Any other business

 

APPENDIX III

OPINION OF THE EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ)

ON THE DRAFT CIVIL LAW CONVENTION ON CORRUPTION WHICH IS BEING

PREPARED BY THE MULTIDISCIPLINARY GROUP ON CORRUPTION (GMC)

1. During its 16^th meeting from 24 to 26 February 1999, the Multidisciplinary Group on Corruption (GMC) completed the second reading of the draft Civil Law Convention on Corruption and, in accordance with its terms of reference, requested the opinion of the CDCJ on this text. The GMC will examine this opinion at its next meeting during the week beginning 21 June 1999.

2. The CDCJ welcomed the aim of this draft Convention, which requires each Party to provide in its internal law for effective remedies for persons who have suffered damage as a result of corruption, in order to enable them to defend their rights and interests, including the possibility of obtaining compensation for damage.

3. The CDCJ welcomed the elaboration of this draft Convention, which sets out innovative means of dealing with corruption and is the first comprehensive step to define common principles and rules at an international level in the field of civil law and corruption. The CDCJ is convinced that this text, together with the Criminal Law Convention on Corruption (ETS 173 - opened to signature on 25 January 1999), will constitute a useful tool and a sound legal basis for an effective fight against corruption in Europe and beyond.

4. The CDCJ welcomed the fact that this text is drafted as a Convention and not as a Recommendation. Indeed, it considered that the binding nature of this pioneering instrument will enable the "Group of States against Corruption – GRECO" (see Resolution (98) 7 adopted by the Committee of Ministers during its 102^nd Session on 5 May 1998) to monitor effectively its proper implementation.

5. Owing to the numerous differences between the civil law systems of the Council of Europe member States and the different legal traditions of States in this area, the CDCJ favours that fact that this draft Convention will enable Parties to transpose the principles and rules contained in this text in their internal law, by taking into account their own particular circumstances.

6. In the light of the previous paragraph, the CDCJ considered that the role of the "GRECO" was particularly important. Indeed, during its monitoring activity in accordance with Article 14 of the draft Convention, it will ensure that Parties comply with their undertakings under this draft Convention.

7. The CDCJ welcomed the fact that Article 3 of the draft Convention provides for the right of persons, who have suffered damage as a result of an act of corruption, to initiate an action in order to obtain full compensation for such damage. In the framework of the draft Convention, "full compensation" means, inter alia, that (i) damages must not be limited to any standard payment but must be determined according to the loss sustained in the particular case and (ii) punitive damages are excluded from this draft Convention, although Parties whose domestic law provides for punitive damages are not required to exclude their application in addition to full compensation.

8. The CDCJ pointed out that the English text of paragraph 2 of Article 8 should be aligned with the French text. The CDCJ was also of the opinion that the solution in substance should be considered further, especially as regards the effects in particular cases of the contract being declared void.

9. The CDCJ debated the possibility of allowing third parties to apply for the contract to be declared null and void. Nevertheless, having regard to the fact that the draft Convention gives new rights to third parties to obtain full compensation for the damage suffered as a result of a corrupt act, and given that it will be open to States Parties to afford to third parties the right to apply for the contract to be declared null and void (see paragraph 63 of the Explanatory Report), the CDCJ considered that a balance has been struck.

10. Furthermore, the CDCJ welcomed the approach of this draft Convention to require Parties to co-operate effectively and in accordance with existing and relevant international legal instruments.

11. The CDCJ welcomed the innovative approach of this draft Convention, which provides (Articles 20 and 21), for the first time in a civil law convention of the Council of Europe, an important role for the CDCJ as regards questions relating to amendments and settlements of disputes. The CDCJ noted that these tasks are normally given to the European Committee on Crime Problems (CDPC) in the context of criminal law conventions. The CDCJ pointed out that it was ready to carry out these tasks, in particular in the light of the "after-sales service" of conventions and recommendations dealing with matters falling under the competence of the CDCJ.

12. Moreover, the CDCJ underlined that this draft Convention set out minimum standards which Parties should be able to introduce in their internal law without great difficulties. However, the CDCJ pointed out that it should be clarified in the text of the draft Convention or in its Explanatory Report whether, for example, States Parties are always allowed to provide for more favourable provisions for victims and how the concept of minimum standards applies to Article 7 of the draft Convention.

13. The CDCJ also pointed out that the text of Article 10 of the draft Convention should be aligned with the Forth Council Directive on the annual accounts of certain types of companies (78/660/EEC, Article 2, paragraph 3), the Seventh Council Directive on consolidated accounts (83/349/EEC, Article 16, paragraph 3) and the Eighth Council Directive on the approval of persons responsible for carrying out the statutory audits of accounting documents (84/253/EEC, Article 1, paragraph 1, letter a).

14. The CDCJ also underlined the balanced approach of this draft Convention in the field of civil law remedies against corruption. This has enabled, inter alia, the text to provide that "no reservation may be made in respect of any provision of this Convention" (Article 17), in conformity with the recommendation expressed in this sense on several occasions by the Parliamentary Assembly of the Council of Europe.

15. In conclusion, the CDCJ invited the GMC to finalise this text if possible in time for the 105^th Session of the Committee of Ministers in November 1999 and to take into account the above observations.

APPENDIX IV

OPINION OF THE EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ)

ON PARLIAMENTARY ASSEMBLY RECOMMENDATIONS

1271 (1995) AND 1362 (1998) ON DISCRIMINATION

BETWEEN WOMEN AND MEN IN THE CHOICE OF A SURNAME

AND THE PASSING ON OF PARENTS’ SURNAMES TO CHILDREN

1. The CDCJ noted that, following the adoption by the Parliamentary Assembly of Recommendations 1362 (1998) and 1271 (1995) on discrimination between women and men in the choice of a surname and the passing on of parents’ surnames to children, the Committee of Ministers had requested the European Committee on legal co-operation (CDCJ) and the Steering Committee for equality between women and men (CDEG) to examine the situation in detail and to suggest action to be taken within a reasonable time scale.

2. Following this request the CDCJ examined, in the light of written and oral information from States, the most important problems which could arise concerning surnames and having regard to the texts indicated above as well as the Committee of Ministers’ Resolution (78) 37 on equality of spouses in civil law and Recommendation No R (85) 2 on legal protection against sex discrimination. In this respect, the CDCJ recalled its opinion on this subject prepared at its 64^th meeting in 1995 for the Committee of Ministers (see CDCJ(95)76 Appendix III) and took also note of the opinion on this issue prepared by the Committee of experts on family law (CJ-FA) during its 32^nd meeting (17-19 March 1999).

3. The European Committee on legal co-operation (CDCJ) agreed with Recommendations 1271 (1995) and 1362 (1998) of the Parliamentary Assembly that both Resolution (78) 37 on equality of spouses in civil law of the Council of Europe and the United Nations Convention on the elimination of all forms of discrimination against women, invited States to eliminate discrimination between men and women in the legal systems concerning names.

4. The CDCJ noted that several States had recently amended their domestic laws in order to respect the principle of equality between men and women as regards the family name of spouses and the transmission of the surname to their children. On the other hand, the CDCJ agreed with the Parliamentary Assembly that other States do not comply with the principles contained in Resolution (78) 37, in particular as regards the transmission of parents’ surname to children and also concerning the name of the spouses.

5. The CDCJ noted that the legal systems concerning names varied very much from one country to another and much depended upon customs and local traditions. In general this diversity should be respected and there was no reason to impose a uniform system. Nevertheless, the CDCJ noted that paragraph 17 of Resolution (78) 37 already provided States with a large choice of non-discriminatory solutions.

6. The CDCJ agreed that the continuation of discrimination between women and men in the legal provisions concerning names was not compatible with the principles relating to equality contained in the international instruments of the Council of Europe. Consequently, the CDCJ proposed that the States concerned should be requested to take all necessary steps, in due course, to avoid such discrimination.