Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

il faut probablement dans certaines matières laisser une certaine marge d’appréciation aux États, mais … en même temps il faut éviter à tout prix les doubles ou triples standards selon les pays et en ce qui concerne les mêmes problèmes.25

This highlights the issue of municipal courts adopting municipal concepts of the margin of appreciation, and this was also highlighted by the Grand Chamber in A v. United Kingdom:

The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level.26

The UK courts had rejected adopting a municipal margin of appreciation, with similar reasons. The government lawyers got short shrift when they challenged this rejection before the Grand Chamber. The Grand Chamber did not need to address this question, but used the opportunity given here to clarify this issue.

Questions relating to the margin of appreciation are very much a live issue, not least because the remit of this doctrine seems to be expanding.27 This issue was front and centre in the Lautsi case, in which the Grand Chamber of the Strasbourg Court afforded a generous margin of appreciation to the state in the vexed question of whether public schools may display religious symbols in classrooms.28 J.H.H. Weiler, who favoured that solution which the Grand Chamber reached in Lautsi, has

25J.-P. Costa, ‘Interview Exclusive de Jean-Paul Costa, Président de la Cour Européenne des Droits de l’Homme’, Droits de l’homme – jurisprudence de la cour européenne des droits de l’homme 5 (2007) 77–80, at 77–8.

26ECtHR, A v. United Kingdom (Appl. No. 3455/05), Judgment (Grand Chamber), 19 February 2009, Reports 2009, para. 184. We have discussed this in M. Andenas and E. Bjorge, Menneskerettene Og Oss (Oslo: Universitetsforlaget, 2012) 83–9, and see also J. Christoffersen, ‘Primaritetsprinsippet – Nye Tanker Om EMRKs Stilling i Dansk Ret’, J. Christoffersen and M. Rask Madsen (eds.), Menneskerettighedsdomstolen – 50 års samspil med dansk ret og politik (Copenhagen: Thomson, 2009), at 173, concluding that ‘the doctrine of national margin of appreciation does not have the same application at the national level’ [‘doktrinen om statenes skønsmargin ikke finder samme anvendelse på national plan’].

27See the judgments in ECtHR, Schalk and Kopf v. Austria (Appl. No. 30141/04), Judgment (Chamber), 24 June 2010, Reports 2010; ECtHR, A, B and C v. Ireland (Appl. No. 25579/05), Judgment (Grand Chamber), 16 December 2010, Reports 2010; ECtHR, Lautsi and Others v. Italy (Appl. No. 30814/06), Judgment (Grand Chamber), 18 March 2011, Reports 2011.

28Lautsi and Others, ibid.

argued that this must be so, as the ‘European Court of Human Rights is not an oracle’.29 In his view, the Strasbourg Court is a dialogical partner with the member states, the legitimacy and persuasiveness of its decisions residing both in their quality and communicative power. The Court, Weiler argues, is simultaneously reflective and constitutive of the European constitutional practices and norms. When there is a diverse constitutional practice among the Convention States – and there certainly is in this area – the Court needs to listen, not only preach, and to be seen to be listening.30

Graphically, the doctrine of margin of appreciation pulls in the direction of value pluralism; the effect of the granting by the Court of a margin to the state authorities will in practice lead to differing levels of rights protection in the member states.

We mention briefly another feature, often linked to the margin of appreciation – the doctrine of proportionality. The centrality in ECHR law of proportionality and balancing has long been recognised.31 Rolv Ryssdal pointed out that ‘[t]he theme that runs through the Convention and its case law is the need to strike a balance between the general interest of the community and the protection of the individual’s fundamental rights’.32

The cases before the Court on the rights of transsexuals, which culminated in Goodwin33 – perhaps the leading Strasbourg exemplar of evolutive interpretation – show the relationship between the doctrine of evolution of rights on the one hand and the doctrine of the margin of appreciation on the other: at various stages of the development of this line of cases, both of these defining concepts of the Convention scheme were on display. For years – most notably in Rees,34

29J.H.H. Weiler, ‘Editorial’, European Journal of International Law 21:1 (2010) 1–6, at 1.

30Ibid. The argument builds on J.H.H. Weiler, Un’ Europa Cristiana: Un saggio esplorativo

(Saggi: BUR, 2003).

31See among the many of his works on this, A. Stone Sweet, ‘Sur la constitutionnalisation de la Convention Européenne des Droits de l’Homme: Cinquante ans après son installation, la Cour Européenne des droit de l’Homme conçue comme une Cour constitutionnelle’,

Revue Trimestrielle des Droits de l’Homme 80 (2009) 923–44, at 923.

32R. Ryssdal, ‘Opinion: The Coming of Age of the European Convention on Human

Rights’, European Human Rights Law Review 1:1 (1996) 18–29, at 18, 26; see S. Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’, International Journal of Constitutional Law 7:3 (2009) 468–93, at 475–8.

33ECtHR, Goodwin v. United Kingdom (Appl. No. 28957/95), Judgment (Grand Chamber), 11 July 2002, Reports 2002-VI.

34ECtHR, Rees v. United Kingdom (Appl. No. 9532/81), Judgment (Plenary), 17 October 1986, Series A, Vol. 106.

Cossey35 and Sheffield and Horsham36 – the Court held back from recognising the right of British citizens to receive a birth certificate in accordance with their new sex after sex change. In issue in these cases were article 8 and whether the interference by the UK with the prima facie privacy right to have one’s own perceived gender recognised was proportionate. As is clear from this line of cases – especially in light of its culmination, Goodwin, in which the Grand Chamber concluded in 2002 that the interference was disproportionate – the acceptability of an evolutive interpretation of the right in issue was a question of whether the interference could be deemed proportionate, which in turn was dependent upon the margin of appreciation to be accorded to the state authorities, itself a function of consensus among the member states.

Other comparators could conceivably have been chosen, too. Another example could have been the notion of ‘autonomous concepts’, according to which member states cannot define their way out of Convention obligations by, for example, classifying an offence as disciplinary instead of criminal, thus falling outside the remit of articles 6–7.37 There have been many cases in which the Strasbourg Court has handed down adverse judgments faulting the member state based on the doctrine of autonomous concepts.38 One recent example of this is the 2009 decision by the Strasbourg Court in M v. Germany,39 which bore on whether preventive detention could be ordered retrospectively against persons convicted of offences committed prior to the publication of the statute setting up the preventive detention scheme. The German scheme of preventive detention – Sicherungsverwahrung – in terms of German law was not punishment, whereas the Strasbourg Court held that, no matter what the definition in national law, in terms of ECHR law it was clear that the scheme in issue was punishment according to article 5, and as a consequence, also fell foul of article 7(1).

35Cossey v. United Kingdom.

36ECtHR, Sheffield and Horsham v. United Kingdom (Appl. Nos. 31–2/1997/15–816/1018– 19/1998), Judgment (Grand Chamber), 30 July 1998, Reports 1998-V.

37ECtHR, Engel and Others v. The Netherlands (Appl. Nos. 5100, 5101, and 5102/71; 5354 and 5370/72), Judgment (Plenary), 8 June 1976, Series A, Vol. 22; see G. Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, European Journal of International Law 21:3 (2010) 509–41, at 523.

38G. Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’, European Journal of International Law 15:2 (2004) 279–305, 279.

39ECtHR, M v. Germany (Appl. No. 19359/04), Judgment (Fifth Section), 17 December 2009, Reports 2009.

However, the doctrine of autonomous concepts is really part and parcel of any kind of treaty interpretation.40 Any treaty whose member states may define themselves away from their treaty obligations will be positively emasculated, as would the notion of the treaty having a final international arbiter. Autonomous concepts have not been given the pride of place which has been accorded to the doctrines of the evolution of Convention rights, the margin of appreciation, and proportionality – nor have they been as important in defining the relationship between the Strasbourg Court and national judges.

Evolution of rights, proportionality and the margin of appreciation, therefore, seem to be apposite points of reference by which to measure the degree of adaptation of the member states. If it is accepted that the three comparators make up a good yardstick, then looking at how the municipal legal systems have related to them would seem a good way of measuring the will of the judiciaries of the member states at issue to comply with the schema of the ECHR. Some of the issues will bleed into one another, and while in some jurisdictions the margin of appreciation has been front and centre in legal debates on implementation, it may have received no attention in others. It has, for example, been the subject of much debate in UK law, while many other jurisdictions have conceptualised implementation in ways which have brought other aspects of the Convention system into the foreground. The opening up of national and international legal systems, as discussed by Tomuschat and Crawford, is a complex process.

2.Development of Convention rights

In spite of, or rather, precisely because of, the fact that in international law ‘no matter is more daunting and complicated’ than getting one’s hands around evolutive interpretation,41 a large literature over the last few decades has been accorded to this aspect of the ECHR system and interpretation – both in international and national law – in general.42

40See, for a classic example, the 1923 ruling by the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco (French Zone), Advisory Opinion, PCIJ (1923) Series B, No. 4; a more recent example is found in the 2010 judgment by the International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) ICJ Reports (2010), para. 77.

41M. Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties I’, Hague Yearbook of International Law 21 (2008) 101–57, at 102.

42Some examples among many are P.M. Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, in E. Cannizzaro (ed.), The Law of Treaties Beyond the

This technique of interpretation has been particularly associated with human rights treaty regimes, such as that of the Convention.43 In fact, one is often made to believe that the technique of evolutive interpretation is a concomitant of human rights conventions only, or certainly that it is a more natural ally of human rights conventions than of other conventions.44 There may be good reason to complicate the picture, as it has a direct bearing on the relationship between national courts and the Strasbourg Court.45

Arguably, evolutive – or ‘dynamic’ – interpretation of human rights treaties is in principle no different from evolutive interpretation of other treaties. What is common between treaty regimes which have been interpreted evolutively is first and foremost the fact that the treaty makers wanted them to be capable of application to new situations, and therefore articulated the treaties’ object and purpose in ‘generic terms’. A generic term is ‘a known legal term, whose content the parties expected would change through time’.46 When an international tribunal has recourse to evolutive interpretation of generic terms, what it does is to apply, in keeping with the treaty’s object and purpose, the generic term on new situations.47 In the interpretation of all types of treaty, the interpreter will encounter the problem of how the passage of time – and

Vienna Convention (Oxford University Press, 2011) 123–37; V. P. Tzevelekos, ‘The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECtHR: An Effective AntiFragmentation Tool for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration’, Michigan Journal of International Law 31 (2010) 621–90, at 621; B. Simma, ‘Harmonizing Investment Protection and International Human Rights: First Steps towards a Methodology’, in C. Binder (ed.), International Investment Law for the 21st Century (Oxford University Press, 2009) 685–94; D. French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’, The International and Comparative Law Quarterly 55:2 (2006) 281–314, 297–300; C. Jennings, Oppenheim’s International Law, Vol. I (London: Longman, 1992), at 1282.

43L. Caflisch, ‘Les conventions américaine et européenne des droits de l’homme et le droit international général’, Révue Générale du Droit International 108:5 (2004) 9–22.

44See, for a recent example, Dissenting Opinion of Judge Cançado Trindade in Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) ICJ Reports (2011), para. 169.

45See E. Bjorge, ‘National Supreme Courts and the Development of ECHR Rights’, International Journal of Constitutional Law 9:1 (2012) 5–31.

46Kasikili/Sedudu Island (Botswana v. Namibia), Declaration of Judge Higgins, ICJ Reports (1999), 1113–14, para. 2.

47B. Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’, in G. Ulfstein and H. Keller (eds.), UN Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012) 261–319, 278 et seq.

attendant changing circumstances – affect the interpretation and application of the treaty. Just as the genius of the Napoleonic codes was their taxonomic elegance and the adaptability of their concepts to apply to new situations,48 treaties meant to last over long periods of time are often furnished with generic terms, the meaning of which will be capable of new applications. As was pointed out in the Iron Rhine case: ‘It has long been established that the understanding of conceptual or generic terms in a treaty may be seen as “an essentially relative question; it depends upon the development of international relations”.’49 Another early example is the Spanish Zone of Morocco Claims, where the arbitrator, Max Huber, in his 1923 ruling, held that the treaty term in issue, ‘maison convenable’, which dated back to 1783, must be interpreted ‘au point de vue des exigencies actuelles’ (at the time when the decision was rendered).50

Examples of such conventions may be found in many different fields: one finds it, for example, in a field as far removed from human rights law as trade treaties and bilateral investment treaties, where, as a matter of course, generic terms such as ‘sound recording’, ‘distribution’, ‘investment’, ‘fair and equitable treatment’, ‘full protection and security’, and ‘expropriation’ have been the object of evolutive interpretation.51

It bears mention at this juncture that interpretative techniques such as evolutive interpretation are in no way foreign to national judges – even independently of the ECHR system. This forms an important part of the background for implementation. A 2010 judgment from the Czech

48See generally, J.L. Halpérin (ed.), L’impossible Code Civil (Paris: Presses Universitaires de France, 1992).

49Permanent Court of Arbitration, Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium v. The Netherlands), Award, 24 May 2005 at 36, para. 79, quoting

Nationality Decrees Issued in Tunis and Morocco, PCIJ Series B, No. 4 (1923) at 24. See P. Daillier et al., Droit international public (Paris: Librairie générale de droit et de jurisprudence, 2009) at 287.

50British Claims in the Spanish Zone of Marroco (Spain v. United Kingdom) 2 RIAA 615, at 722, 725. See A. McNair, The Law of Treaties (Oxford University Press, 1968), at 468.

51See WTO Appellate Body, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China – Publications and Audiovisual Products), Report, WT/DS353/AB/R (circulated 21 December 2009, adopted 19 January 2010) paras. 396–7 (‘sound recording’ and ‘distribution’);

Romak S.A. (Switzerland v. The Republic of Uzbekistan), Award, 26 November 2009, paras. 181–95 (‘investment’); ICSID, Mondev International Ltd. v. United States of America, Award, 11 October 2002, ICSID Case No. ARB(AF)/99/2, para. 116 (‘fair and equitable treatment’ and ‘full protection and security’); ICSID, Tecnicas Medioambientales Tecmed S.A. v. The United Mexican States, Award, 29 May 2003, ICSID Case No. ARB(AF)/00/2, para. 116 (‘expropriation’).

Constitutional Court illustrates the national constitutional perspective. The Czech court applies a ‘teleological interpretation’ of national constitutional and ECHR provisions. The recently adopted Czech constitutional rights provisions are subjected to the same teleological method. In rejecting a literal approach, the court emphasised how formalism and literalism would open up for ‘arbitrariness’, which it has developed as its core constitutional concept. The court set out its method and how it has been developed as part of its constant jurisprudence as follows, in a tightly reasoned and referenced passage to which the present translation does not do full justice:

The Constitutional Court has also referred to the relevance of the teleological method directed at finding the meaning and operation of the law. … The Constitutional Court has accentuated the importance of the teleological method of interpretation as an interpretative approach which is necessary in constitutional law and which … constitutes a significant corrective in identifying the contents of a legal norm.52

From the point of view of another legal system, the UK Supreme Court Justice, Lady Hale, said extra-judicially in 2011 that: ‘[t]he common law is no stranger to the concept of evolutive interpretation, both of precedent case law and of legislation’.53 When it comes to the interpretation of statutes, except where the Human Rights Act requires otherwise, the UK Supreme Court are in theory looking for the ‘intention of Parliament’. This, as Lady Hale explicates, is an illusion, ‘because on most points which come before us Parliament did not have any intention at all’. Common law judges then deduce the intention of the legislation from the terms used, read in the light of the statutory purpose. It is, however, rare for an Act of Parliament to have to be construed and applied exactly as it would have been at the time of its promulgation. Statutes, she says, are said to be ‘always speaking’;54 the words used must be made to apply to situations which would never even have been contemplated when they were enacted. Thus, a ‘member of the family’, first used in 1920, could be

522010/04/13 – Ii. ÚS 485/10, para. 21. This and other translations of judgments of the Czech Constitutional Court build on the translations published by the Court and made public on its website.

53B. Hale, ‘European Court of Human Rights: The Limits to the Evolutive Interpretation of the Convention’ at www.echr.coe.int/ECHR/EN/Header/The+Court/Events+at+the +court/Opening+of+the+judicial+year/ (15 April 2011).

54‘Always speaking’ is the equivalent approach to ‘living instrument’ in the Common Law tradition.

held in 2001 to include a same-sex partner.55 As Lord Slynn of Hadley said in Fitzpatrick v. Sterling Housing Association Ltd:

It is not an answer to the problem to assume … that if in 1920 people had been asked whether one person was a member of another same-sex person’s family the answer would have been ‘No’. That is not the right question. The first question is what the characteristics of a family in the 1920 Act were, and the second whether two same-sex partners can satisfy those characteristics so as today to fall within the word ‘family’. An alternative question is whether the word ‘family’ in the 1920 Act has to be updated so as to be capable of including persons who today would be regarded as being of each other’s family, whatever might have been said in 1920.56

In the same vein, ‘bodily harm’, in a statute of 1861, could be held in 1998 to include psychiatric harm.57 In its recent ruling in Yemshaw,58 the UK Supreme Court gave an illustrative example of just how naturally evolutive interpretation comes to common lawyers. In this case, the generic statutory term in issue was ‘violence’. As the Supreme Court in Yemshaw said, this kind of generic statutory term ‘can change and develop over time’.59 This, as Lord Brown poignantly underscored, was nothing other than applying a ‘“living instrument”, “always speaking” approach to statutory construction’.60

The picture is much the same in French law.61 French courts, as a matter of course, make use of the Strasbourg Court’s method when interpreting the ECHR; the Convention thus becomes a living instrument for effective rights protection through the contribution of French courts.62 The field in which this interpretative development has been most striking is probably prisoners’ rights.63 On the whole, French administrative courts have lost no time in joining the Strasbourg Court

57R v. Ireland [1998] AC 147.

58Yemshaw (Appellant) v. London Borough of Hounslow (Respondent) [2011] UKSC 3.

59Ibid., para. 27.

60Ibid., para. 56. See also Pioneer Shipping Ltd v. BTP Tioxide Ltd (The Nema) [1982] AC 724 and Antaios Compania Neviera SA v. Salen Rederierna AB [1985] 1 AC 191.

61See D. Fairgrieve and H. Muir Watt, Common Law et Tradition Civiliste: Convergence ou Concurrence? (Paris: Presses Universitaires de France, 2006); B. Stirn et al., Droits et Libertés en France et au Royaume-Uni (Paris: Odile Jacob, 2006).

62L. Heuschling, ‘Comparative Law in French Human Rights Cases’, in Esin Örücü (ed.),

Judicial Comparativism in Human Rights Cases (United Kingdom National Committee of Comparative Law, 2003) 23–47, at 33.

63M. Guyomar et al., Contentieux Administratif (Paris: Dalloz, 2010), at 235–6.

in evolving rights in this area. Important here are two cases decided on the same day, on the basis of the same conclusions by rapporteur public, Mattias Guyomar.64 The first of the cases concerned a decision about a change of the allocation of a detainee, the other, prison employment relegation.

Traditionally, such measures were deemed to be mesures d’ordre intérieur, which are not subject to judicial review. In respect of prisons, this practice is very much a vestige of old penitentiary administration traditions. French administrative law has drawn a distinction between them and actes administratives. Mesures d’ordre intérieur administratives in later years have become eroded by rights-based jurisprudence,65 so that fewer and fewer are exempt from judicial review. Barring any breach of legal requirement, however, the ordinary operational decisions in the exercise of a discretion which the administration enjoys – the decision, for example, to alter the frequency of services – has been regarded until very recently to lie squarely outside the ambit of judicial review.66 The authorities on the issue, Marie and Remli, did not warrant such a move; the rapporteur public made clear in his conclusions that in his view only a dynamic approach to the Convention rights, going further than Strasbourg, but taking inspiration from the ECHR rights, would allow this.

In Boussouar,67 which was about the right to an effective remedy in article 13, the Assemblée du contentieux, the highest body of the Conseil d’État, held that the decision to change the allocation of a detainee from a high-security prison (maison centrale) to a detention centre where detainees are being held pending their trial or sentencing (maison d’arrêt) was in fact an administrative act, lending itself to judicial review.68

64 M. Guyomar, ‘Conclusions sur Conseil d’État, Assemblée, 14 December 2007, M. Planchenault (1re espèce), et Garde des sceaux, ministre de la Justice c/ M. Boussouar

(2e espèce)’, Revue Française de Droit Administratif (2008) 87 (hereinafter Guyomar,

‘Conclusions’). Rapporteur public is the new appellation of the commissaire du gouvernement: décret no. 2009–14 du 7 janvier 2009 relatif au rapporteur public des juridictions administratives et au déroulement de l’audience devant ces juridictions.

65See Kherouaa [1992] Actualités Juridique Droit Administratif 833; Hyver CE 10 Oct. 1990; Marie and Hardoun CE Ass. Plén. 17 February [1995] Actualités Juridique Droit Administratif 420–21.

66See, e.g., J. Bell et al., Principles of French Law, 2nd edn (Oxford University Press, 2008), at 181.

67Conseil d’État, Assemblée, Boussouar, No. 290730, 14 December 2007; Guyomar, ‘Conclusions’.

68Ibid.

The second decision in which the Conseil applied these criteria was Planchenault.69 At issue was the decision by a penitentiary administration body to deny a prisoner the opportunity to work in the prison kitchen on grounds of his attitude being uncooperative. The effects of this measure on his situation proved to be important to his chances of proving that he was capable of reintegration into society and benefiting from a reduction of his sentence diminished. The Conseil clarified the degree of control afforded in these instances to the judge. Following the extensive conclusions of the rapporteur public, which cited ECHR authorities, but also comparative analysis by way of showing the direction in which Belgian, Italian, and UK jurisprudence on the issue was heading, the Assemblée du contentieux held that this, too, could no longer be exempt from judicial review by dint of being mesure d’ordre intérieur. This effectively meant that the two situations in Boussouar and Planchenault were held to constitute ‘administrative act[s] susceptible of recours pour excès de pouvoir’. As the principle of legality in French administrative law prescribes a line of conduct for administration from which the administration cannot depart without committing an excès de pouvoir, any violation of the principle can be a ground for review, potentially making the administrative act void. Traditionally, this is based on four grounds, incompetence, vice de forme, violation de la loi, and détournement de pouvoir.70 The conclusions, adopted wholesale by the Conseil in the two judgments, held:

En premier lieu, l’évolution jurisprudentielle que nous vous proposons qui prolonge les acquis de vos décisions Marie–Remli nous paraît de nature à prémunir la France contre toute condamnation de la Cour de Strasbourg. Les deux logiques de contrôle – la vôtre et celle de la Cour européenne – ne coïncident pas exactement. La prise en compte de la jurisprudence européenne vous conduit, dans une certaine mesure, à aller au-delà de ce que la Cour exige dans le cadre de son contrôle a posteriori et in concreto. … Refuser de contrôler les décisions aujourd’hui attaquées reviendrait à accepter de fermer les yeux en attendant qu’on les ouvre pour vous à Strasbourg. Telle n’est pas la conception que nous avons de votre office. … En outre, en élargissant l’accès à votre prétoire, vous conférez sa pleine portée au caractère subsidiaire du contrôle de la cour européenne, prenant en charge dès les instances nationales la vérifi- cation du respect des droits conventionnellement garantis.71

69M. Planchenault, req. no. 290420 [2007] AJDA 2404.

70L. Neville Brown et al., French Administrative Law, 5th edn (Oxford: Clarendon Press, 1998), at 239.

71Guyomar, ‘Conclusions’, in the original, of which a translation follows: ‘First of all, the jurisprudential evolution which we suggest you take, extending the acquis of your