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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
5
Koua Poirrez v. France,
paragraph 50 of the decision.
6
Court of Justice decision in
Grant v. South-West Train
, C-249/96.
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.