Let’s begin this article by expressing our regret at the need to analyze judgments motivated by legislation that is, to say the least, dubious, even if we are very pleased with the progress that has been made.
This case (C-356/21) concerns a request for a preliminary ruling from the Court of Justice of the European Union, pursuant to Article 267 TFEU, by the Warsaw Court of First Instance, on the interpretation of Articles 3(1)(a) and (c) and 17 of Council Directive 2000/78/EC of November 27, 2000 establishing a general framework for equal treatment in employment and occupation.
Between 2010 and 2017, the plaintiff signed several consecutive, short-term service contracts with TP, a company that operates a public television channel. Although he had received positive feedback from the company, following the publication on YouTube of a Christmas video promoting tolerance towards same-sex couples, on December 6, 2017, the plaintiff received a notification by email informing him that his contract had not been renewed, which would have taken effect on December 7.
After bringing an action before the Warsaw Court of First Instance, seeking compensation for the non-pecuniary damage suffered as a result of the violation of the principle of equal treatment through direct discrimination on the grounds of sexual orientation, the defendant countered, arguing that Article 5(3) of the Act on the Transposition of Certain Provisions of European Union Law on Equal Treatment makes no provision for the choice of contractor to be based on the sexual orientation of the employee.
In the reference for a preliminary ruling, it was asked:
i) Whether the applicant’s self-employed activity can be classified as “self-employment” within the meaning of Article 3(1)(a) and (c) and therefore included in the protection afforded by the Directive;
ii) Whether the aforementioned Article 5 should be interpreted as also including protection against discrimination based on sexual orientation, since it appears to be a clear restriction on the conditions of access to self-employment.
With regard to the first question, the Court begins by explaining that, if Article 3 encompasses the concepts of “employment”, “self-employment” and “professional activity”, it is understood that the European legislator in no way intended to restrict its personal scope to workers only.
Por outro lado, também procede a uma interpretação teleológica do alínea c). Ainda que a mesma diga respeito, de forma expressa, às condições de emprego e de trabalho, resulta de uma interpretação teleológica do artigo 3.º, n.º 1, alínea c), da Diretiva 2000/78 que o conceito de «condições de emprego e de trabalho» que aí figura visa, em sentido amplo, as condições aplicáveis a qualquer forma de atividade por conta de outrem e independente, qualquer que seja a forma jurídica sob a qual esta é exercida.
Turning to the second question, the Court states that Article 2(5) of the Directive must be interpreted strictly. I.e., even if there is nothing to prevent the application of measures provided for in national law which are necessary for the purposes of public security, the protection of law and order and the prevention of criminal offenses, the protection of health and the protection of the rights and freedoms of third parties, the truth is that the useful effect of the Directive must always be pursued.
Therefore, and even though the article of Polish law seems to effectively pursue discrimination in a disguised way, the non-inclusion of the “sexual orientation” factor: i) cannot be considered as a factor used to guarantee freedom of contract in a democratic society; ii) nor does it guarantee the useful effect of the Directive since it excludes one of the rights inherent, in our view, to the democratic state in the 21st century.
Fortunately, Article 3(1)(a) and (c) is now interpreted as opposing national legislation which has the effect of excluding a person’s sexual orientation from the protection against discrimination on the grounds of the contractor’s free choice not to conclude a contract with a self-employed person.
It’s (almost) as they say: a small step for the self-employed, but a big step for the world of work.
Maria Beatriz Silva @ DCM | Littler
