CEDH · CASELAW;CLIN;ENG — 4 septembre 2007

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 100 August-September 2007 Schaefer v. Germany - 14379/03 Decision 4.9.2007 [Section V] Article 8 Article 8-1 Respect for family life Ruling by the domestic courts that applicant was not entitled to restitution of bonds pledged by her husband to a creditor: inadmissible   The applicant was married under the matrimonial property regime of the community of increased assets. Under this regime the property of spouses does not become joint property, but any increase in the assets of either spouse during the marriage is equalized on termination of the community. However, there are limitations on the spouses’ right to dispose of their assets: in particular, a spouse may only agree to dispose of the entirety of his or her assets with the other spouse’s consent. In 1989 the applicant’s husband pledged, without the applicant’s consent, four bonds (worth a total of DEM   232,000) to a bank as security for a loan. The bank subsequently called in the loan and used the sums due to the husband on the redemption of the bonds to repay part of the loan. The applicant brought an action against the bank under section 1365 of the Civil Code for restitution of the bonds or payment of DEM   232,000, arguing that the pledge of the bonds was void as she had not given her consent. Her claim was dismissed and her further appeals to a court of appeal and to the Federal Court of Justice likewise failed, with the latter holding that the bank had effected a valid set-off against which section   1365 afforded no protection. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint. Inadmissible : The Court proceeded on the assumption that the subject-matter of the case –   the applicant’s inability to claim restitution from her husband’s creditor – was covered by the notion of “family life”. It noted that the German courts had had to weigh the applicant’s individual interest in preserving the economic basis of her family against the creditor’s interest in the repayment of the loan granted to her husband. The latter interest had to be considered an interest of the community as a whole as it concerned the legitimate aim of protecting the rights of others while allowing the contractual claims of private parties to be enforced served legal certainty and could thus be seen as being in the interest of the economic well-being of the country, another legitimate aim under Article 8 § 2. The Federal Court of Justice had found, in a thoroughly reasoned judgment, that a spouse’s interest did not outweigh the creditor’s interest under all circumstances or shield the applicant from all reductions of the family’s assets, in particular those resulting from compulsory execution or set-offs. Having regard to the State’s margin of appreciation in securing the economic basis of the individual’s family life, the domestic courts had not failed to strike a fair balance between the conflicting interests: manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes