Thomas Probst, Die Rechtsprechung des Europäischen Gerichtshofes als neue Herausforderung für die Praxis und die Wissenschaft im Schweizerischen Privatrecht, in Basler Juristische Mitteilungen, 2004, p. 225-260
[The case law of the European Court of Justice as new challange for legal practice and the science in Swiss private law]
a) Background
The text at hand focuses on the specific issues of private law and on the challenges brought about by the case law of the European Court of Justice to courts, legal science and legal practice in Swiss private law. The opinions of the author have been confirmed by more recent decisions of the Swiss Federal Tribunal.
Thomas Probst is Professor for Private and Comparative Law at the University of Fribourg, Switzerland. The article was published in 2004 in the Basler Juristische Mitteilung, which is the widely respected publication organ of the Lawyers Association of the Canton of Basel.
b) Summary
In a contextual remark, the author begins his observations on the evolution of the changing notion of “European law” from a Swiss perspective. The development can be characterized as a development from “public European law to private European law.” In the first phase, the notion “European law” was institutionally linked to the Council of Europe and the European Convention on Human Rights; the second phase – partially parallel – focused on the ECSC and the EEC-Treaties, in particular on the institutions, the legislative and law enforcement process and the basic rights. Consequently “European law” was predominantly qualified as international public law. In the third phase, after the negative vote of the Swiss people against the EEA-Agreement, the planned Eurolex legislation, and the successful ensuing Swiss Lex Legislation, private law was brought to the centre of interest.
The major factors of the influence of EU law on Swiss Law are by way of “Autonomen Nachvollzug” (autonomous adaptation) of EU-directives by the Swiss legislator; the decisions of the European Court of Justice; and the influence in the trans-European legal science.
The article analyses the consequences and the significance of the decisions of the European Court of Justice for the Federal Tribunal. The Federal Tribunal applies the following major arguments in its holdings regarding the influence of the law of the European Court of Justice: autonomously applied national law is to be applied in a “Euro-compatible” way. “Euro-compatibility,” as a guiding principle of interpretation, is a dynamic goal which implies the autonomous interpretation of national law to be “objective” and pertaining to the “present times (Geltungszeitlich). The article analyses the systematic significance of the EU court decisions on the international treaty based unified law; the harmonization of law, in which the Swiss legislator has autonomously followed community law; and the area of non-harmonized law.
Probst first analyses the Vienna unified Law on Sales, the Lugano-Convention and the Free-Trade-Treaty between Switzerland and EU. Where the legislator regularly does not address explicitly the situation as to the effects of judgments of the European Court of Justice, it is open to the discretion of the courts applying the general rules and methodology. In the core of non-harmonized national law, the interpretation by the legislator and the courts are by and large independent and autonomous. Based upon the tradition and the practice, national courts may take foreign law into account. The Federal Tribunal has a history of openness and independence concerning foreign law and has often used foreign law as a very productive source in the interpretation of national law.
The article gives an overview of the methodological rules in dubio pro interpretatione europea of treaty based unitary law, autonomously applied European Community law and of non-harmonized national law. The article evaluates the options of the Federal Tribunal as regards to the interpretation of Community law, as well as the risks of such court decisions to digress in divesity splitting in Swiss private law and the risk of loss of autonomy in the area of consumer protection. Probst calls for an analysis and a theory to steer the boat of Europeanization between the Scylla of a heteronomously determined Swiss law and the charybdis of an isolation of the Swiss private legal order from EU community law.