Browsing by Author "Bator-Bryła, Monika Patrycja"

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    Prohibition of Discrimination Based on Sexual Orientation: Analysis of CJEU and ECtHR Case Law Concerning Human Rights
    (Wydawnictwo KUL, 2024) Bator-Bryła, Monika Patrycja
    This article analyses the importance of the prohibition of discrimination based on sexual orientation in light of the primary and secondary legislation of the European Union, as well as the case law of the Court of Justice of the European Union and the European Court of Human Rights. In the context of human rights protection, the prohibition of discrimination based on sexual orientation is a key element of modern judicial rulings in Europe. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) play crucial roles in shaping the standards for the protection of LGBT+ persons by interpreting legal provisions and issuing judgments that influence national legislation. Both institutions emphasize the importance of equal treatment within the framework of human rights, and their rulings contribute to the elimination of prejudice and discrimination. The analysis of the case law of the CJEU and ECtHR demonstrates how LGBT+ rights are integrated into the broader context of human rights protection, which in the long term may lead to changes in social norms and legislation in member states. The prohibition of discrimination, including on the grounds of sexual orientation, undoubtedly constitutes one of the main social and economic objectives of the European Union. This is reflected in the incorporation of this matter into EU primary law, secondary law, and CJEU jurisprudence. The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) identify equality as one of the Union’s values, mandate its promotion, and call for combating all forms of discrimination, prohibiting discrimination based on specified criteria. Furthermore, national measures can be examined in light of the treaty provisions only to the extent that they apply to situations not covered by the treaty’s specific anti-discrimination provisions. The author proposes the following theses: firstly, an analysis of CJEU case law reveals a noticeable dissonance between the application of national regulations by member states and EU law in the examined area, which significantly complicates the practical implementation of the prohibition of discrimination based on sexual orientation. Discrepancies mainly arise in national law due to improper drafting of national legal provisions or their erroneous interpretation by relevant national authorities. In particular, the author compares the regulations of member states with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. An analysis of the directive’s content, considering its interpretation by the CJEU, leads to the conclusion that member states implement the directive incorrectly, and the level of protection against discrimination based on sexual orientation is insufficient compared to the requirements of EU law. Member states are obliged to comply with EU law, which includes not only the duty of state authorities to respect directly applicable acts or implement them into national law but also the obligation to interpret and apply national law in accordance with the requirements of EU law. The second thesis results from the analysis of CJEU case law regarding the prohibition of discrimination based on sexual orientation. Although anti-discrimination directives form the foundation of the European Union’s anti-discrimination system, particularly in the areas of employment and occupation, the phenomenon of unequal treatment also occurs in other spheres such as access to goods and services or education. This necessitates the adoption of comprehensive legal measures to effectively combat discrimination. The study employs a comparative legal method, involving a comparative analysis of the legal acts of EU member states and the European Union regarding the prohibition of discrimination based on sexual orientation. The comparison of EU acts and national norms reveals the extent of the implementation of the provisions of EU law in this area within the legal systems of EU member states. The aim of this analysis is, among other things, to diagnose areas where these states have improperly implemented provisions of EU law or have incorrectly interpreted them. However, due to the limited amount of case law in this area, the author has limited the analysis to a few judgments. The second method applied is the analysis of the case law of the CJEU. CJEU rulings constitute a significant part of the study, compelling the author to use the comparative method to analyse judgments based on the same or similar legal grounds in analogous circumstances within the framework of the prohibition of discrimination based on sexual orientation. The author presents the following theses: firstly, an analysis of CJEU case law reveals a noticeable dissonance between the application of national regulations by member states and EU law in the examined area, which significantly complicates the practical implementation of the prohibition of discrimination based on sexual orientation. Discrepancies mainly arise in national internal law due to improper drafting of national legal provisions or their erroneous interpretation by relevant national authorities. In particular, the author compares the regulations of member states with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. An analysis of the directive's content, considering its interpretation by the CJEU in limited rulings, leads to the conclusion that member states implement the directive inadequately, and the level of protection against discrimination based on sexual orientation is insufficient compared to the requirements of EU law. Member states are obliged to comply with EU law, which not only includes the duty of state authorities to respect directly applicable acts or implement them into national law but also the obligation to interpret and apply national law in accordance with EU law requirements[1]. The second thesis results from the analysis of CJEU case law regarding the prohibition of discrimination based on sexual orientation. Although anti-discrimination directives form the foundation of the European Union's anti-discrimination system, particularly in the areas of employment and occupation, the phenomenon of unequal treatment also occurs in other spheres such as access to goods and services or education. This necessitates the adoption of comprehensive legal solutions to effectively combat discrimination in a practical dimension.
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    Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union
    (Wydawnictwo KUL, 2021) Bator-Bryła, Monika Patrycja
    The subject of this article is to analyze the meaning of the prohibition of discrimination on grounds of nationality in the light of the provisions of primary and secondary European Union law and the case law of the Court of Justice of the European Union, which is inherent to the functioning of the internal market and EU citizenship. The prohibition of discrimination on grounds of nationality is undoubtedly one of the main goals of the European Union in the social and economic context, which was reflected in the localization of the matter in question in the primary law of the European Union, in secondary law and in the jurisprudence of the Court of Justice of the European Union (CJEU). The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) indicate equality as one of the EU values (Article 2 TEU), require it to be promoted and combat all discrimination (Articles 8 and 10 TFEU) and prohibit discrimination due to the criteria indicated therein (Articles 18 and 19 TFEU). In secondary law, this principle was expressed primarily in the Regulation of the European Parliament and of the Council No. 492/2011 on the free movement of workers within the Union and in art. 24 of Directive 2004/38/EC 2004 on the right of citizens of the Union and their relatives to move freely. A special role in this area is played by the case law of the Court of Justice of the European Union (CJEU), which stated that all authorities of the Member States are obliged to refuse to apply a provision of national law that is contrary to the prohibition of discrimination on the grounds of citizenship (Article 18 TFEU). Moreover, national measures may be examined in the light of art. 18 TFEU, but only to the extent that they apply to situations not covered by specific non-discrimination provisions included in the Treaty. The author puts forward the thesis that the analysis of CJEU jurisprudence reveals a visible dissonance between the application of national regulations of the Member States and the provisions of EU law in this matter, which significantly hinders the implementation of the principle of non-discrimination in practice. Discrepancies mainly occur in domestic legal acts due to the improper drafting of national legal provisions and / or their misinterpretation by national judicial or administrative authorities. It should be emphasized that the Member States are obliged to comply with EU law, which is not tantamount only to the obligation of state authorities to respect directly applicable acts, or to implement required regulations into internal law, but also the obligation to interpret and apply internal law in a manner that does not violate the requirement resulting from EU law. Judicial and administrative authorities of the Member States should therefore interpret national law as far as possible, in line with EU law, because the limits of the pro-EU interpretation will be determined by the powers conferred by domestic law. The study uses the legal-comparative method, consisting in a comparative analysis of the legal systems of the Member States and the European Union in the field of non-discrimination on the basis of nationality, rights and restrictions on the freedom of movement of authorized entities. Comparative verification of EU acts with the internal standards of individual EU Member States allows to reveal the degree of advancement of the implementation process of EU law provisions under the free movement of EU citizens and their family members in the discussed area in the legal systems of European Union Member States. The purpose of this analysis is to, inter alia, diagnose areas in which these countries have not implemented or improperly implemented EU regulations, or have misinterpreted them. The second method used is the method of analyzing the jurisprudence of the Court of Justice of the European Union - the rulings of the CJEU constitute a significant part of the study. The case law in question covers the period from the establishment of the Treaties of Rome to the present day. The use of the latter obligated the author to apply the comparative method of judgments based on same or similar legal bases in similar circumstances from different stages of the evolution of the free movement of citizens of the European Union and their family members under the prohibition of discrimination on the basis of nationality.