The freedom to contract and choose a self-employed person cannot justify discrimination on the basis of sexual orientation, Advocate General Tamara Ćapeta ruled on Thursday 8 September in her opinion to the Court of Justice of the EU (CJEU) on Case C-356/21.
The Warsaw District Court had asked the CJEU whether the framework directive on equal treatment in employment and occupation (EU Council Directive 2000/78/EC) could preclude Polish legislation allowing the refusal to enter into a contract with a self-employed person on the grounds of sexual orientation. An audiovisual editor had been working as a freelancer for a Polish public television station for 7 years, but the station put an end to their collaboration after the editor posted a video on YouTube calling for tolerance towards same-sex couples.
Ms Ćapeta recalls that the directive explicitly refers to the conditions of access to both employment and self-employed activities insofar as a person “engages in personal work”, “irrespective of the legal form under which the work is provided”.
She also found that Polish legislation allowing sexual orientation to be taken into account when selecting a contractor does not fall within the permitted exceptions to the directive.
Finally, stressing that the directive does not disproportionately restrict freedom of contract, the Advocate General “points out that the referring Court must set aside the Polish legislation at issue, as it precludes the enforcement of a right not to be discriminated on the basis of sexual orientation guaranteed by the Directive”.
It is now up to the judges of the CJEU to deliberate and deliver a judgment on this case at a future date.
See the conclusions: https://aeur.eu/f/300 (Original version in French by Hélène Seynaeve)