After Polish Case, CJEU Rules to Protect Self-employed Workers based on Sexual Orientation

With EC infringement procedure against Poland still outstanding, the Court of Justice of the European Union (CJEU) has ruled that sexual orientation cannot be a reason to refuse or conclude a contract with a self-employed worker.

In December 2017, a self-employed worker and his partner published a music video on YouTube aimed at promoting tolerance towards same-sex couples. Shortly after the video went public, the worker’s shifts were unilaterally cancelled by his employer, Poland’s public television channel. Subsequently, no new contract for specific work was concluded with him.

For seven years up to release of the video, the freelancer had prepared audiovisual material for TP, a company that operates a nationwide public television channel in Poland. Considering himself to be a victim of direct discrimination based on his sexual orientation, the worker brought an action for compensation before the District Court of Warsaw. 

The District Court sought guidance from the CJEU, wanting to know whether the EU Directive 2000/78 on equal treatment in employment and occupational activities precludes Poland’s national legislation. That legislation allows an employer not to conclude or renew a contract with a self-employed worker, based on that person’s sexual orientation, on the basis of the freedom of choice.

The EU Directive 2000/78, which covers a wide range of occupational activities, establishes a general framework for combatting discrimination based on sexual orientation. Therefore, the court was tasked with deciding whether the situation the self-employed worker found himself in fell under the directive.

In its judgement delivered today, the CJEU holds that the Directive 2000/78 must be construed broadly, covering the access to any occupational activity, even if the worker is self-employed under contract with an employer.

The Court noted that the directive seeks 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.

According to ILGA-Europe’s Head of Litigation, Arpi Avetisyan, “Today’s judgement is another important step forward in strengthening the protection against discrimination in the workplace. The judgement clarifies that EU law protects from discrimination based on sexual orientation also for self-employed and thus reinforces the protection against discrimination equally for the self-employed across the EU. The judgement is especially crucial for LGBTI people in those municipalities in Poland which still have anti-LGBTI resolutions or family charters in place. We hope that Polish authorities will take the necessary steps to implement this judgement swiftly and make it a reality.”

In the summer of 2021, the European Commission (EC) announced infringement procedures against Poland and Hungary for the violation of fundamental rights of LGBTI people and non-cooperation on the matter. While the Hungarian case has been forwarded to the CJEU, the Polish case, despite theoretically being on the same institutional timeline, has not been brought to the CJEU yet, and no up-date is available at this moment of time.

“For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures sent a clear signal that enough is enough, and the EC needs to see it through.”

Katrin Hugendubel, Advocacy Director, IlGA-Europe

According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel: “In opening infringement procedures, the EC finally clearly stated that the Polish government is violating fundamental rights and that the EC cannot tolerate such violation and the unwillingness of the government to engage in sincere cooperation.

“Even if a few regions have withdrawn the so-called ‘LGBT free zone’ declarations, the discriminatory declarations still prevail on municipal, local and also regional levels. In order not to lose credibility, the EC needs to follow through the infringement procedure and to ensure that all such discriminatory resolutions are repealed.

“For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures sent a clear signal that enough is enough, and the EC needs to see it through.”

See also

Press Release

LGBTI organisations welcome EU parental recognition proposal with the best interests of the child at its core

EU-wide parenthood recognition is key in ensuring equal protection for all children in the Union, say ILGA-Europe and NELFA.
read more
News

Sexual orientation is not a reason to terminate a contract with a self-employed worker, says Advocate General of the CJEU

Today, the Advocate General of the CJEU has issued an opinion in the case of J.K. vs the Polish public broadcaster company TP, stating that discrimination based on sexual orientation in employment is not acceptable under EU law.
read more
News

Rainbow families have the right to move and reside freely, EU court reiterates

The Court of Justice of the EU has stated that birth certificates issued in an EU country must be recognised across the EU, and that EU countries should protect the freedom of movement of rainbow families.
read more
News

Polish public broadcaster TP in EU Court for Discrimination Against Self-employed LGBTI Person

Today, the case of J.K. vs the Polish public broadcasting company TP, in which the applicant is seeking compensation for the discontinuation of his freelance […]
read more
Case Law

A.B. and K.V. v Romania

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment Submitted jointly […]
read more
News

European Commission and Council should refrain from approving recovery funds to the governments of Poland and Hungary

An Urgent call on the European Commission and the Council of europe to refrain from approving recovery funds to the governments of Poland and Hungary, […]
read more
News

EU Ministers must act on the serious breach of EU’s rule of law and values in Poland

While Poland keeps attacking LGBTI people and their rights, ILGA-Europe have signed a joint letter along with 86 other NGOs asking EU Ministers to take action.
read more
Blog

How Baby Sara and her mums have pushed forward the rights of all rainbow families across the EU

When an EU country recognises a child and its same-sex parents as a family, all EU countries should recognise them as such, so to guarantee their freedom of movement. This is what the EU’s top court ruled in December. But how this case has advanced LGBTI rights in the European Union and what comes next for rainbow families?
read more
Case Law

Macaté v. Lithuania

Freedom of expression, warning labels restricting artistic expression.
read more
Blog

What has 2021 meant to the LGBTI movement in Europe? Listen to our latest podcast episode to find out this year’s highlights

As 2021 comes to an end, we have collected some of the moments, events and trends that have marked the year in the latest episode of The Frontline, ILGA-Europe’s podcast about LGBTI activism and lives in Europe and Central Asia. Read here some of the episode’s highlights and find out reasons to stay hopeful in 2022.
read more
Blog

Alarming new research shows how LGBTI people are affected every day by inequality

Recent data shows that LGBTI young people perceive the labour market with fear and that most of LGBTI youth living with their families have experienced violence in different parts of Europe. These are among the alarming facts related to the impact of inequality and oppression in LGBTI communities, as identified through ILGA-Europe’s No One Left Behind initiative.
read more
Press Release

Top EU Court Recognises Relationship of Same-sex Parents and their Children Under EU Law

In a landmark judgement, the Court of Justice of the European Union has ruled that a child and its same-sex parents must be recognised as […]
read more
Case Law

Coman and Others v Romania

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment.
read more
Blog

How trans parents are better protected after European Court ruling

Recently, the European Court of Human Rights ruled in favour of a trans woman in Russia who was denied access to her children because of her gender identity and transition. Read on to find out how this may benefit all trans and LGBTI parents in Europe.
read more
Report

Poland Anti-LGBTI Hate Timeline

Over the past number of years, LGBTI people have come under increasing attack from ruling politicians, religious leaders and other public figures in Poland. This […]
read more
News

European Court rules in favour of the best interest of the child in same-sex custody case

The European Court of Human rights has ruled that the refusing a mother custody of her youngest child on the grounds of her sexual orientation to be discriminatory and a violation of her right to private and family life.
read more
Podcast

The frontline: Queer and the Media: with Ben Hunte

Ben Hunt’s first year on the job as BBC LGBT Correspondent* has been an unprecedented one, with the rise of anti-LGBT hatred in Europe, marked […]
read more
Press Release

With today’s infringements the EU has clarified that member states can no longer act against human rights with impunity

According to ILGA-Europe, the infringement procedures announced by the European Commission today show that the EU has come to a tipping point; after years of […]
read more
News

Is The EU an LGBTIQ Freedom Zone? 

The ambition is right, but the reality is very different, says leading European LGBTI rights organisation
read more
Blog

LGBTI activists create a Twitter storm for EU infringement procedures against Poland over so called ‘LGBT-free Zones’

ILGA-Europe launched an-hour long Twitter Storm demonstration on February 11, calling on the European Commission to take infringement procedures against Poland, making the Polish-based hashtag #infringementNOW trend
read more
News

Help us create a Twitter Storm calling on the European Commission to hold Poland to account for its treatment of LGBTI people!

On Feb 11, as the current KPH campaign draws to an end, we would like to create a Twitter storm to get the hashtag #infringementNow trending, asking why the EU Commission has not taken infringement procedures against Poland yet. Here is how you can help create this important moment.
read more
Press Release

Poland: All charges against LGBTI rights defenders charged for peaceful activism must be dropped, say Human Rights NGOs

The trial of three women accused of “offending religious beliefs” will take place, tomorrow on January 13 in Plock, Poland. The activists face up to two years in prison for disseminating posters of the Virgin Mary with a rainbow halo symbolic of the LGBTI flag. Six international human rights NGOs are calling for all charges to be dropped, and for the Polish authorities to amend their legislation and bring it in line with international and regional human rights standards. 
read more
Case Law

V.D. v Russia

Asylum. Submitted jointly by ILGA-Europe, AIRE Centre, ICJ and UKLGIG.
read more
Case Law

A.H. and Others v Germany

Recognition of trans parenthood.
read more
News

Poland: Drop charges against women rights defenders

NGOs call to drop unfounded charges for peaceful activism.
read more
News

Joint letter on Poland to Commission President von der Leyen

Following her State of the European Union speech, with KPH and Fundacja Równo?ci we wrote a letter to the European Commission President Ursula von der Leyen. 
read more
Blog

Podcast: What’s it like being LGBTI in Poland in 2020?

Poland has reached a dangerous boiling point in its state-driven discrimination against LGBTI people. The first episode of ILGA-Europe’s podcast, The Frontline, goes behind the scenes to talk about a way forward for LGBTI activism in the country. Here’s what it’s all about…
read more
Case Law

Buhuceanu and Ciobotaru v. Romania

Recognition of same-sex unions. Submitted jointly by ILGA-Europe, FIDH, NELFA and ECSOL. 
read more
Press Release

Poland is violating the fundamental rights of EU citizens and blatantly disregarding EU treaties and standards

The European Commission and member states are duty bound to hold Poland accountable to EU Treaties, asserts ILGA-Europe, alongside two Polish equality organisations, in a legal complaint citing the violation of fundamental rights of the EU by inciting hatred and discrimination against LGBTI people.
read more
Blog

Poland’s Anti-LGBT Hate Timeline

We have created and will be updating this abbreviated timeline of what’s been happening over the past two years with the rise of official homophobia and transphobia.
read more