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European Union

EU: prohibition of discrimination offers broad protection for self-employed service providers

In a judgment of 12 January 2023, the CJEU confirmed that the refusal to offer further service agreements to a self-employed person, based on the sexual orientation of the service provider, can indeed constitute a prohibited direct discrimination.

The CJEU dealt with a preliminary question from a Polish court concerning the interpretation of Article 3(1)(a) and (c) of the Equal Treatment Framework Directive 2000/78/EC. In this case, the applicant worked on the basis of a number of successive short-term service contracts as a self-employed person for eight years as a developer of audiovisual montages, trailers and feuilletons for Poland’s national public television broadcaster. After he and his partner made a YouTube video clip, promoting tolerance for same-sex partners, showing how same-sex partners celebrate Christmas, the broadcaster ceased to offer him any further service contracts. The applicant brought an action before the court, claiming, among other things, compensation for non-material damage for breach of the principle of equal treatment in the form of direct discrimination on grounds of sexual orientation with regard to the conditions for access to and exercise of an economic activity under a civil law contract.

The Polish court questions whether Polish law on protection against discrimination on grounds of sexual orientation concerning the conditions for access to employment or self-employment, including selection and recruitment criteria, as well as in relation to employment and working conditions, are in line with the Framework Directive 2000/78/EC. The Polish court seeks to ascertain whether Article 3(1)(a) and (c) of Directive 2000/78/EC must be interpreted as precluding national legislation which has the effect of excluding from the protection against discrimination to be afforded under that directive the refusal to conclude or renew a contract with a person, based on that person’s sexual orientation, for the provision of certain services by that person in the context of self-employment, on the basis of the free choice of the contracting party.

The CJEU confirmed that the scope of Article 3(1)(a) of Directive 2000/78/EC is not limited to workers and that the concept of ‘conditions of access to employment, to self-employment or to occupation’ cannot be interpreted restrictively. Furthermore, in relation to ’employment and occupation’, the directive aims to establish a general framework for combating discrimination on grounds of, inter alia, sexual orientation, so that Member States can apply the principle of equal treatment. For occupational activities to fall within the scope of the directive, those activities must be genuine and exercised in the context of a legal relationship characterised by a degree of stability. This must be assessed by the referring court. Since the activity carried on by the applicant constitutes a genuine and effective professional activity exercised personally and regularly for the benefit of the same customer, it falls within the scope of Directive 2000/78/EC.

Furthermore, the Court confirms that the concept of ’employment and working conditions’ contained in Article 3(1)(c) of Directive 2000/78/EC broadly cover the conditions applicable to all forms of employment and self-employment, irrespective of the legal form in which that employment is carried out. Furthermore, in the present case there is an involuntary termination of employment of a self-employed person, which can be equated with the dismissal of an employee. This is because the term ‘dismissal’ in Article 3(1)(c) Directive 2000/78/EC is considered to be an example of a unilateral termination of work from Article 3(1)(c) Directive 2000/78/EC.

It may be concluded that Article 3(1)(a) and (c) of Directive 2000/78 must be interpreted as precluding national legislation which has the effect of excluding a refusal, based on a person’s sexual orientation, to conclude or renew a contract with that person for the provision of certain services by that person in the context of self-employment, on the basis of the free choice of the party to the contract, from the protection against discrimination to be granted under that directive.

Source: CJEU 12 January 2023, C‑356/21, J.K. v TP S.A., ECLI:EU:C:2023:9