Brussels, 29/04/2015 (Agence Europe) - In permanently excluding all homosexual men from giving blood, France appears to be infringing the principle of proportionality, the Court of Justice of the EU finally ruled on Wednesday 29 April.
The Court was especially cautious in this case, particularly in comparison with the opinion of the Advocate General, who said in July 2014 that the Court should rule against France for clear indirect discrimination based on gender and sexual orientation (see EUROPE 11124). In its ruling, the Court took account rather of the opinion of the French government and of the European Commission that the epidemiological situation in France has a specific character. The risk of acquiring severe infectious diseases, such as HIV, that can be transmitted by blood from a donation by a homosexual male would appear to be higher.
The Court nonetheless left it to the French court hearing the case (Administrative Court, Strasbourg) to ascertain the current epidemiological situation in France; the data available to the judges dated from the period 2003-2008. Nevertheless, while permanent exclusion from giving blood may thus seem to be justified because it helps reduce risk for those receiving blood, it is disproportionate but only where less onerous methods of ensuring a high level of health protection for recipients of blood exist. Once more, it will be for the Strasbourg court to ascertain if there are, indeed, such less onerous methods. (Jan Kordys)