Excluded from Polish society after publishing a video promoting tolerance towards same-sex couples
L’sexual orientation cannot be a reason for refusing to conclude a contract with a self-employed person. This was decided by the Court of Justice of the European Union (CJEU) regarding the appeal of a Polish citizen.
This had been excluded from the company which operates a public television channel, with which it had previously entered into a number of contracts, after he and his partner posted a Christmas music video on Youtube promoting tolerance towards same-sex couples.
Between 2010 and 2017, the man had created audiovisual montages, trailers and costume and company services for the self-promotional broadcasts of TP, a company that manages a national public television channel in Poland. The collaboration was based on a series of consecutive short-term works contracts.
After the publication of the video, his shifts had been canceled by the company which had therefore not stipulated any new opera contract with him.
The man then turned to the Warsaw Tribunal believing he was the victim of one direct discrimination based on his sexual orientation. The judge asked the CJEU to find out whether the directive on equal treatment in employment and occupation also applies in this case.
And whether the directive prevents national legislation which, by virtue of the free choice of the contracting party, excludes the refusal to conclude or renew a contract with a self-employed worker based on sexual orientation from the protection against discrimination provided for by the directive?
The Court declares that the notion of “conditions for access to employment and workboth employed and self-employed”, which limits the professional activities that fall within the scope of application of Directive 2000/78, must be understood in a broad senseas relating to access to any professional activity, regardless of its nature and characteristics.
The directive, explains the CJEU, “is aimed at eliminating, for reasons of social and public interest, all obstacles based on discriminatory grounds access to livelihoods and the ability to contribute to society through work, irrespective of the legal form under which it is provided”.
Given that activities consisting in the mere supply of goods or services to one or more recipients do not fall within the scope of that directive, the Court also states that the professional activities falling within the scope of directive 2000/78 must be actual and exercised in the context of a legal relationship characterized by a certain stability.
And that it is for the referring court to assess whether the activity in question satisfies that criterion. If it concludes that there is discrimination, it cannot justify a derogation.
In this regard, the CJEU notes that, although the Polish legislation you seem to protect the rights and freedoms of others, and more precisely the contractual freedom, it it is not necessary to guarantee this freedom.
“To accept that freedom of contract allows refusing to contract with a person on the grounds of sexual orientation would deprive Directive 2000/78, as well as the prohibition of any discrimination based on such a ground, of their effectiveness”.
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