Polish legislation which allows a contractor to refuse to enter into a contract with a self-employed person on the grounds of his or her sexual orientation is contrary to the Employment Equality Directive (2000/78/EC), the Court of Justice of the EU ruled on Thursday 12 January (Case C-356/21). With this judgment, the Court confirms the Opinion of the Advocate General Tamara Ćapeta on this case, repeating her argumentation (see EUROPE 13017/23).
The European judges were responding to questions from the Warsaw District Court, which had been seized with a discrimination case brought by a freelance audiovisual editor who had been refused an extension and renewal of his contract by Polish public television on the grounds of the contractor’s freedom of choice after he and his partner had posted a video on YouTube promoting tolerance of same-sex couples.
The Polish court asked, in particular, whether the case of this person, as a self-employed worker, falls within the scope of the Directive and whether the Directive precludes Polish legislation which, on the basis of the freedom of choice of the contractor, excludes from the protection against discrimination afforded by the Directive the refusal to conclude or renew a contract with a self-employed person on the grounds of his sexual orientation.
The Court answers both questions in the affirmative.
On the one hand, the Directive covers access to the exercise of any professional activity, whether employed or self-employed, whatever its nature and characteristics, as long as the professional activities carried out are “genuine” and exercised in the context of a “legal relationship characterised by a degree of stability”. Furthermore, with regard to the notion of “dismissal”, the Court accepts that a self-employed person forced to cease his activity due to the refusal of the contractor to renew his contract is in a vulnerable position comparable to that of a dismissed employee.
On the other hand, to answer the second question, the Court points out that the purpose of Directive 2000/78 is to eliminate, “on grounds relating to social and public interest, all discriminatory obstacles to access to livelihoods and to the capacity to contribute to society through work, irrespective of the legal form in which it is provided”. In this context, the refusal to renew a contract on the grounds of the contractor’s sexual orientation on the grounds of freedom of contract appears to be in contradiction with the Directive, according to the judges. In fact, “to accept that freedom of contract allows a refusal to contract with a person on the ground of that person’s sexual orientation would deprive Directive 2000/78, and the prohibition of any discrimination based on that ground, of its practical effect”.
See the judgment: https://aeur.eu/f/4vf (Original version in French by Francesco Gariazzo)