CYIL 2015

MONIKA FOREJTOVÁ CYIL 6 ȍ2015Ȏ The ECHR held in that way in spite of an earlier preliminary decision by the CJEU stating that EU social security law was not binding on France in the matter 5 and refused to rule on the matter. There is another dispute between the CJEU and ECtHR as to the extent in which non-married heterosexual pairs should be treated equally with homosexual partners. In Grant v. South-West Train, 6 the CJEU held that stable relations of persons of the same sex cannot be seen to fall within the scope of “family life” as mentioned in Article 8 of the Convention. On the other hand, the ECtHR interpreted the issue in Salgueiro da Silva Mouta v. Portugal 7 in quite the opposite manner. The courts also have incompatible views in the field of protecting an individual from discrimination in the context of awarding or not awarding specific social allowances. For the ECtHR, economic circumstances on the part of a member state are grounds to apply the margin of appreciation principle (see below), and it is up to a court, whether specific allowances shall be made legally and practically accessible to persons falling under its jurisdiction. For the CJEU, however, the single market issue is of utmost importance, regardless of the economic situation of a particular Member State. In other words, the important thing for the CJEU is that allowances should be granted to individuals not to interfere with the basic principles of free movement of people, goods, services and capital. The key point for the CJEU is that factual discrimination in granting social allowances demonstrably leads to limiting the free movement of people. 8 Also worth mentioning is the ECtHR’s view, whether the impossibility to respond to an attorney general’s opinion in the CJEU procedure is or is not a violation of the right to fair trial under Section 6 of the Convention. For now, the ECtHR referred to the notion of equal or comparable legal protection on the EU level and has not found this fact to be in violation of the Convention. 9 On the other hand, the EU confirmed – to the contrary – that it has authority in the field of fundamental rights. 10 Another controversy regarding Article 6 of the ECHR can be seen in the issue of “adversarial system” . In Orkem (C-374/87) the CJEU held that, as far as competition law is concerned, companies lack the right not to provide (the European Commission) evidence, which might later be used against them. This holding strongly contradicts 7 Salgueiro da Silva Mouta v. Portugal , ECtHR decision dated 21. 12. 1999, application no. 33290/96. 8 KOLDINSKÁ, K.: Koordinace sociálního zabezpečení ve vztahu k občanům třetích zemí- jsme si rovni ? ( Coordinating social security in relation to third-country nationals – are we equal?) , or in more detail see ŠTANGOVÁ,V.: Zákaz diskriminace v pracovněprávních vztazích z důvodu státní příslušnosti (Prohibition of discrimination on the basis of nationality in labor relations) . In Iuridica 3/2014, Charles University in Prague, Nakladatelství Karolinum 2014, p. 35 and 69. 9 Emesa Sugar NV v. Netherlands , ESLP decision dated 13. 1. 2005, complaint no. 62023/00. 10 JIRÁSEK, J.: Sekundární normotvorba EU v oblasti ochrany základních práv a princip subsidiarity (Secondary legislation of EU in the field of protection of fundamental rights and the principle of subsidiarity), Právní rozhledy. 12/2009, p. 431. 5 Koua Poirrez v. France, paragraph 50 of the decision. 6 Court of Justice decision in Grant v. South-West Train , C-249/96.

212