Protection against Discrimination in All Forms of Labour

The European Court of Justice ruled that Directive 2000/78/EC does not define the concept of ‘conditions for access to employment, self-employment or an occupation’ and does not refer to the laws of the member states for that purpose. These concepts must therefore be interpreted independently and uniformly in the EU, according to the ordinary meaning of the words, considering the context in which they occur and the objectives of the legislation of which they form part. ^{Footnote 19} The European Court of Justice held that it follows from the combined use of the terms ‘employment’, ‘self-employment’ and ‘profession’ that the conditions for access to any professional activity, whatever its nature and characteristics, are covered by Article 3(1)(a) of Directive 2000/78/EC and therefore fall within the scope of that Directive. A comparison of the different language versions of this provision and the general terms used in them led the European Court of Justice to the conclusion that these terms must be interpreted broadly. ^{Footnote 20} This means that, according to the European Court of Justice, the EU legislator did not intend to limit the scope of Directive 2000/78/EC exclusively to posts occupied by ‘workers’ within the meaning of Article 45 TFEU, which provides for the free movement of workers. ^{Footnote 21} The European Court of Justice also noted that Directive 2000/78/EC was adopted based on Article 13 of the Treaty on European Community (now Article 19(1) TFEU), which empowers the EU to take appropriate action to combat discrimination. Recitals 9 and 11 of Directive 2000/78/EC state that discrimination on grounds of sexual orientation may impede the achievement of the TFEU’s objectives of a high level of employment, social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity, and the free movement of persons. Furthermore, the European Court of Justice explained that it is clear from the title, content, and purpose of this Directive that it aims to combat all forms of discrimination in the field of employment and occupation. ^{Footnote 22} This means that Directive 2000/78/EC is not an act of secondary EU law, such as those based on Article 153(2) TFEU, which seek to protect only employees working under employment contracts as the weaker party in an employment relationship. It aims to eliminate, on grounds of social and public interest, all discriminatory obstacles to access to a livelihood and to the ability to contribute to society through work, regardless of the legal form in which it is provided. ^{Footnote 23} This means that the protection afforded by Directive 2000/78/EC cannot depend on the formal classification of the employment relationship under national law, or on the individual’s choice of type of contract. ^{Footnote 24}

The European Court of Justice declared that, although Directive 2000/78/EC covers a wide range of professional activities, including self-employment, these activities must be genuine and carried out in the context of a legal relationship characterised by a certain stability.Footnote ²⁵

It should be noted that the European Court of Justice adopted a stricter approach than Advocate General Ćapeta. She stated that Directive 2000/78/EC provides protection against discrimination irrespective of the legal nature of the contract entered into. Any restriction on the selection of contractor can only be based on the suitability of this person for the job. Like the Advocate General, the European Court of Justice concluded that Directive 2000/78/EC provides protection against discrimination irrespective of the type of contract between the parties. However, it established a more far-reaching requirement, as it added that the relationship between the parties under such contracts must be characterised by ‘a degree of stability’. This can be understood to mean that protection under Directive 2000/78/EC is not afforded to contracts entered into once or a few times, as their parties are unlikely to have a stable relationship. However, each situation must be assessed a casu ad casum.

Anti-discrimination Protection against Non-renewal of Contract

The European Court of Justice stated that since Directive 2000/78/EC ensures non-discriminatory conditions for starting a self-employed activity,Footnote ²⁶ its purpose could not be achieved if the protection it provides did not guarantee the principle of equal treatment during and after the exercise of that activity. This interpretation reflects the purpose of Directive 2000/78/EC, which is to establish a general framework for combating discrimination in employment and occupation on the grounds of, inter alia, sexual orientation. Consequently Article 3, which defines the scope of that Directive, cannot be interpreted restrictively. ^{Footnote 27} This means that the concept of ‘terms and conditions of employment’ referred to in Article 3(1)(c) of Directive 2000/78/EC refers, in a broad sense, to the conditions applicable to any type of employment or self-employment, irrespective of the legal form in which it is carried out.Footnote ²⁸

The European Court of Justice considered whether TP’s decision not to honour and not to renew the contract for specific work which it had concluded with the applicant, thereby terminating their professional relationship for reasons allegedly linked to the applicant’s sexual orientation, fell within the concept of ‘employment and working conditions’ within the meaning of Article 3(1)(c) of Directive 2000/78/EC. The Polish government agreed that a self-employed person is not, in his relations with the contracting party, bound by an employment relationship in which one party can ‘dismiss’ the other. The European Court of Justice disagreed, stating that the term ‘dismissal’ – used in Article 3(1)(c) of Directive 2000/78/EC as an example of ‘employment and working conditions’ – refers to the unilateral termination of any professional activity. Just as an employee may lose his job involuntarily, e.g. following a ‘dismissal’, a self-employed person may also be forced to stop working by the other party to the contract and thus find himself in a situation of vulnerability comparable to that of an employee who has been dismissed. ^{Footnote 29} The fact that the applicant was unable to complete any of the one-week shifts provided for in the contract for specific work which he had concluded with TP constituted an involuntary termination of the activity of a self-employed person, which is equal to the dismissal of an employee. This means that TP’s decision not to renew that contract for specific work on the grounds of the sexual orientation of the applicant, thus terminating the professional relationship between them, falls within the scope of Directive 2000/78/EC.Footnote ³⁰

Legitimate Grounds for Discrimination in the Field of Employment

Article 2(5) of Directive 2000/78/EC contains a closed list of grounds justifying the possibility of discrimination in the field of employment and occupation, namely when it is necessary to ensure public security and the prevention of criminal offences; the protection of health; and the protection of the rights and freedoms of others. The European Court of Justice explained that by adopting this provision, the EU legislator intended to prevent conflicts between the principle of equal treatment and the need to achieve the above objectives. It therefore decided that Directive 2000/78/EC does not apply to certain actions necessary for the attainment of these objectives, provided that the national provisions implementing them are indeed necessary for their attainment. ^{Footnote 31}

In relation to the Equality Act, which transposes Directive 2000/78/EC, the European Court of Justice held that Article 5(3) of the Equality Act constitutes a measure laid down by national law within the meaning of Article 2(5) of Directive 2000/78/EC. Article 5(3) of the Equality Act excludes the application of that Act to the detriment of a contractor’s freedom of choice, where that choice is not based on sex, race, ethnic origin, or nationality. However, as already mentioned, this provision does not include sexual orientation, which is covered by Directive 2000/78/EC. The European Court of Justice pointed out that Article 16 of the Charter enshrines the freedom to conduct business and trade and to enter into contracts, and in particular the freedom to choose with whom to do business and enter into contracts. ^{Footnote 32} This protection is not absolute, however, and must be seen in the light of its social function. ^{Footnote 33}

The European Court of Justice stressed that to assume that freedom of contract allows a person to refuse to enter into a contract with someone on the grounds of his or her sexual orientation would deprive Article 3(1)(a) of Directive 2000/78/EC of any practical effect. This provision explicitly prohibits any discrimination on grounds of sexual orientation insofar as regards access to, inter alia, self-employment. According to the European Court of Justice, Article 5(3) of the Equality Act cannot exclude the protection against discrimination on a ground provided for by Directive 2000/78/EC, if such exclusion is not necessary for the protection of the rights and freedoms of persons in a democratic society.Footnote ³⁴ It follows that Article 5(3) of the Equality Act has incorrectly implemented Article 3 of Directive 2000/78/EC. The judgment is a continuation of the European Court of Justice’s case law affirming that the provisions of Directive 2000/78/EC establishing the legitimate grounds for discrimination must be interpreted strictly.Footnote ³⁵ These judgments will be presented in the next section of this article.

To conclude, the European Court of Justice replied to the national court that Article 3(1)(a) and (c) of Directive 2000/78/EC preclude the application of a national provision which – in the context of the freedom of a contractor to choose – excludes from the scope of protection against discrimination a refusal to conclude or renew a contract for self-employed activities on the grounds of the sexual orientation of the person offering the service.

European Court of Justice Case Law Extending Anti-discrimination Protection under Directive 2000/78/EC

There have been several cases concerning equality and discrimination based on sexual orientation in the case law of the European Court of Justice, most of which have focused on employment. This section presents the landmark judgments of the Court in this area.

Case C-267/06, Maruko,Footnote ³⁶ concerned a theatre costume designer, Tadao Maruko, who was in a civil partnership with a man. His partner was insured by the German theatres’ pension fund, to which he had contributed for more than 40 years. Following his partner’s death in 2005, Mr Maruko applied to the fund for his survivor’s pension. The fund refused to pay it, stating that only spouses were entitled to it. In Mr Maruko’s view, the refusal to grant him this pension for his deceased partner on the same terms as for a deceased spouse constituted discrimination based on sexual orientation. The European Court of Justice ruled that in cases falling within the scope of Directive 2000/78/EC, member states are obliged to treat married persons and persons in a registered partnership in the same way if they are in a comparable situation. This means that if the partner in a registered partnership is in a situation comparable to that of a spouse, restricting the partner’s access to the survivor’s pension of the deceased partner constitutes direct discrimination on grounds of sexual orientation, which is prohibited by Directive 2000/78/EC.

Another German case, C-147/08, Römer,Footnote ³⁷ also concerned discrimination on grounds of sexual orientation in a pension provision. Mr Römer worked for the Hamburg City Council from 1950 to 1990 and had been living with his partner since 1969, with whom he entered into a registered partnership in 2001. After his retirement, he requested that the supplementary pension paid to him be recalculated using a favourable tax category. His request was rejected on the grounds that German legislation does not provide for the possibility of applying the favourable tax category to partners in registered partnerships. The German court hearing the case asked the European Court of Justice whether this situation constituted direct discrimination on the grounds of sexual orientation, prohibited by Directive 2000/78/EC. The European Court of Justice ruled that there had been direct discrimination against Mr Römer and left the final assessment of this issue to the national court. In doing so, it pointed out that the assessment of the comparability of the situation of spouses and registered partners must be carried out in a concrete manner and be based on a comparison of the rights and obligations of these two groups, and not on a formal legal equalisation of their situation.

Another case, C-267/12, Hay,Footnote ³⁸ also concerned discrimination in working conditions on the grounds of sexual orientation. Frédéric Hay had worked for the Crédit Agricole bank since 1998. In 2007, on the conclusion of a civil solidarity pact (PACS) with his partner, Mr Hay asked the bank to grant him special leave and the cash benefit granted to spouses in such circumstances under the bank’s collective agreement. The bank refused, pointing out that the collective agreement provided for the granting of these benefits only to married employees. In this case, the French court’s doubts related to the status of the PACS, which can be entered into by both heterosexual and homosexual persons. These doubts were clarified by the European Court of Justice, which stated that the fact that PACS are not exclusively reserved for homosexual couples is irrelevant. It does not alter the nature of the discrimination against homosexual couples who, unlike heterosexual couples, were unable to marry at the time of the dispute. In this case, however, the European Court of Justice assessed the comparability of the situation of married persons and those who had a PACS. It ruled that the two categories of persons were in comparable situations regarding the advantages concerning pay and working conditions granted upon entering marriage and entering into a PACS. The denial of benefits to those who enter into a PACS therefore constituted direct discrimination, prohibited by Directive 2000/78/EC.

A different finale was reached in Case C-443/15, Parris.Footnote ³⁹ It concerned David Parris, who had been a lecturer at Trinity College Dublin and a member of an occupational pension scheme operated by the college. He filed an application with the College requesting that his survivor’s pension be given to his partner, with whom he had a long-term civil partnership registered in the United Kingdom in 2011. The College refused, pointing out that Mr Parris had not met the requirement that a survivor’s pension be payable if he married or entered into a registered civil partnership before the age of 60. He entered into a registered relationship with his partner after that age. Mr Parris disagreed, arguing that the ability to enter into a registered partnership or recognise an existing relationship was not available under Irish law until 2011. Therefore, as he stated, the failure to recognise that he had previously been in such a relationship – which resulted in the inability to pay a survivor’s pension to his partner – constituted direct discrimination on the grounds of sexual orientation. The European Court of Justice did not share that view, pointing out that right to a survivor’s pension is subject to the same condition of marriage or registered partnership before the member of an occupational pension scheme reaches the age of 60.

Directive 2000/78/EC also provides protection against discrimination in the area of employment where the group of persons affected cannot be identified (i.e. hypothetical discrimination). This was decided in the Italian case C-507/18, Associazione Avvocatura per i diritti LGBTI,Footnote ⁴⁰ in which the well-known lawyer N.H. stated on a popular radio programme that he would neither employ nor use the services of a homosexual person in his law firm. In response, the Italian Association of Lawyers for the Defence of LGBTI Persons brought an anti-discrimination claim for damages against N.H. The lawyer denied the discriminatory nature of his statement, claiming that it was an opinion he was expressing as a private individual, not as an employer, and that there were no opened or planned recruitment procedures in his law firm. The Italian court deciding the case expressed doubts as to whether a discriminatory statement broadcast on a radio programme fell within the scope of Directive 2000/78/EC. The European Court of Justice ruled that in the case in question they did, pointing out that discrimination can consist of discriminatory statements made by a non-employer if they are not hypothetical, but related to the recruitment policy of the employer concerned. The European Court of Justice also set out three requirements for proof: (1) the person making the statements has, or is perceived to have, a significant influence over the employer’s recruitment policy; (2) the statements have a discriminatory content; and (3) they are public. If these conditions are met, it is irrelevant that the circle of persons affected by the discriminatory statements cannot be identified. Compensation can be claimed by organisations defending the rights of victims, such as the association, which brought a claim for compensation against N.H.

In the cited European Court of Justice judgments, the protection against discrimination provided by Directive 2000/78/EC was directed at natural persons. This raises the question whether the personal scope of its protection is wider, covering legal persons and other organisational entities with legal capacity. This concerns the situation where an entity is discriminated against – for example in the taking up and pursuit of an economic activity – on the basis of certain characteristics of the individuals who make up that entity (e.g. LGBT members of an association). Directive 2000/78/EC does not explicitly pre-empt this issue, as is the case with the Race and Ethnicity Directive.Footnote ⁴¹ Despite the lack of regulation, the introduction of the protection of legal persons via national legislation cannot be excluded, as Directive 2000/78/EC sets a minimum standard of protection and provides for the possibility to adopt and maintain more favourable provisions in national law.

To conclude, in the presented cases, the homosexual orientation of people was the reason for their worse treatment in the field of employment, compared to heteronormative persons. The granting of indicated entitlements would not have been problematic and would not have had to be decided by the European Court of Justice, had those persons been heteronormative. What is more, protection against discrimination does not necessarily apply to the specific individuals affected. It also precludes the public expression, by those influencing or deemed to influence employment in the entity concerned, of discriminatory statements excluding the employment or use of services or goods provided by homosexuals, even when there is no recruitment procedure or search for a supplier of goods or services in the entity concerned.

The above review of judgments indicates that the European Court of Justice has consequently been interpreting Directive 2000/78/EC in a manner favourable to its anti-discriminatory purpose in employment and occupation, just as it also upheld this in J.K. v TP S.A. The added value of the J.K. v TP S.A. judgment is that it broadens this protection (to some extent) for self-employed persons working on the basis of civil law contracts, as presented below.

Anti-discrimination Protection for Suppliers of Goods and Services – Where to Seek Legal Protection?

In J.K. v TP S.A., the European Court of Justice held that Directive 2000/78/EC provides protection against discrimination on the grounds of religion, belief, disability, age or sexual orientation, irrespective of the form of employment. In the present case, this meant that a self-employed applicant could benefit from its protection. While recognising the broad scope of application of Directive 2000/78/EC to all forms of professional activities, regardless of their legal form, the European Court of Justice did, however, state that it did not apply to activities consisting ‘in the mere provision of goods or services’. According to the European Court of Justice, protection is only afforded for occupational activities pursued in the context of a legal relationship characterised by a degree of stability. Unfortunately, the European Court of Justice did not justify or explain this essential requirement. Regardless of this, it can be presumed that the continuous exercise of a professional activity is covered by the anti-discrimination protection of Directive 2000/78/EC, whereas the mere – e.g. single or short-term – provision of goods or services is not. This raises the question of whether a person providing goods or services is deprived of anti-discrimination protection, which seems rather difficult to imagine, or whether such protection is provided by other EU legislation. This problem is of practical importance because, as the EU Agency for Fundamental Rights (FRA) survey results show, in 2019 39% of lesbians and 32% of gay men across the EU felt discriminated against because of their LGBTI status in areas other than employment. During that same period, 41% of lesbians and 38% of gay men experienced harassment due to being LGBT.Footnote ⁴² As Advocate General Ćapeta rightly observed, Directive 2000/78 aims at protecting all persons who participate in society by providing their work. Therefore, the anti-discrimination protection should be provided for not only in employment and occupation but also in the provision of goods or services.

Sources of the anti-discrimination protection can be found in several EU provisions. First, Article 10 of the TFEU states that in defining and implementing its policies and activities, the EU shall aim to combat discrimination based on, inter alia, sexual orientation. The internal market, which ensures the free movement of goods and services, is undoubtedly one of the EU’s most important policies. Therefore, within the framework of the free movement of goods and services, the EU must provide protection against discrimination on the grounds of sexual orientation. Second, the prohibition of discrimination on this ground is explicitly provided for in Article 21(1) of the Charter. Third, Article 19(1) TFEU clearly empowers the Council to take appropriate action to combat discrimination based on sexual orientation. It was on this legal basis that Directive 2000/78/EC, discussed in this article, was adopted, banning discrimination in employment and occupation. Unlike race, ethnicity, and gender, where protection against discrimination is provided by the Race Equality Directive (2000)Footnote ⁴³ and the Gender Equality Directive (2006),Footnote ⁴⁴ no EU secondary legislation provides for protection against discrimination on grounds of sexual orientation outside the labour market. This would support the finding that EU law has created a hierarchy of grounds for discrimination, with protection against discrimination on some grounds (race, gender) being stronger than on others (sexual orientation).Footnote ⁴⁵ In 2008, the Commission presented a draft Directive on Equal Treatment.Footnote ⁴⁶ This draft would extend the material scope of the prohibition of discrimination based on religion or belief, disability, age or sexual orientation to education, social protection (including health care and social security), and access to goods and services. This draft has sparked an intense debate over the practicality and desirability of such legislation. Although many member states have cautiously welcomed the draft, concerns remain in some member states about the potential unintended or unforeseen consequences of such law. Some member states – including influential players such as Germany – saw this draft as an encroachment on national competences, in breach of the principle of subsidiarity. Other member states did not want to include social protection and education in the scope of this draft. Given the unanimity requirement in the Council for the adoption of a directive under Article 19 TFEU, its adoption seems rather unlikely.

The absence of secondary EU legislation providing protection against discrimination on grounds of sexual orientation means that the legal basis for such protection must now be sought in Article 10 TFEU and Article 21(1) of the Charter.Footnote ⁴⁷ The jurisprudence of the European Court of Justice is another essential source of protection.

An example of this type of case law is the judgment that is the subject of this article, which extended the scope of anti-discrimination protection in the field of employment to all forms of stable work, regardless of the type of contract concluded.

Protection against discrimination on the grounds of sexual orientation is also provided for in the legislation of some member states. Currently, 20 EU member states and the UK prohibit discrimination on the grounds of sexual orientation in the access to and supply of goods and services.Footnote ⁴⁸ There is also a growing body of national case law, albeit sporadic, which identifies and challenges cases of discrimination based on sexual orientation in areas such as the rental and purchase of property, sport and leisure, and hospitality services. This case law is also emerging in jurisdictions where there are not yet explicit protections against discrimination based on sexual orientation. One example is the high-profile ‘printer case’ decided by the Polish courts. This case arose from the refusal of an employee of a printing company (printer) in city of Łódź to produce posters promoting LGBT ideas because of his beliefs. This has been recognised by Polish common courts as a minor offence of refusal to provide a service without a legitimate reason, punishable under the Misdemeanours Code. In 2019, the Constitutional Tribunal ruled that this Code provision under which the printer was convicted was unconstitutional.Footnote ⁴⁹ As a result of this ruling, the ordinary court ruling convicting the printer was overturned and the case dropped.Footnote ⁵⁰ The Constitutional Tribunal judgment was criticised for, inter alia, failing to consider the preventive and anti-discrimination objective pursued by the provision of the Misdemeanour Code prohibiting the refusal of a service without a legitimate reason.