(AGENPARL) – gio 12 gennaio 2023 Dear All,
Please find attached press release in respect of Case C-356/21:
Sexual orientation cannot be a reason to refuse to conclude a contract with a self-employed worker
The Directive on equal treatment in employment and occupation, which covers a wide range of occupational activities, establishes a general framework for combatting discrimination based, inter alia, on sexual orientation
Kind regards,
Anna Rizzardi
Trainee
Press and Information Unit
Communication Department
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L-2925 Luxembourg
[curia.europa.eu](https://www.curia.europa.eu/)

Testo Allegato:
Communications Directorate

Press and Information Unit

curia.europa.eu

PRESS RELEASE No 6
/23

Luxembourg, 12 January 2023

Judgment of the Court in Case C
–
356/21 | TP (
A
udiovisu
a
l

editor for public television
)

Sexual orientation cannot be a
reason to refuse

to conclude a contract
with a self
–
employed worker

T
he Directive o
n equal treatment in employment and occupation
, which covers a wide range of occupational
activities, establishes a general framework for

combatting discrimination based, inter alia, on sexual
orientation

,
a self
–
employed
worker prep
ared audiovisual

material, trailers
and

features for the
promotional

programmes of TP, a
company
that

operates a nationwide public television channel in Poland
.

That
collaboration was based on a series of contracts for specific work
which that worker conc
luded

with TP

in the
context of his independent economic
activity
.

In

December 2017, that self
–
employed worker and his partner published a Christmas music video
on YouTube
aimed at promoting tolerance towards same
–
sex couples.

Shortly after the publication

of that video, that workerâ??s
shifts were unilaterally cancelled by TP and, subsequently, no new contract for specific work was concluded with
him.

Considering himself to be

a victim of direct
discrimination

based on his sexual orientation, that worker bro
ught an
action for compensation before the District Court
of
Warsaw

(
Poland
)
.
That
c
ourt questions, first,
situation at issue in the main
proceedings

falls within the scope of D
i
rective 2000/78/E
C on equal treatment in
employment and occupation
.

1

Secondly,
national legislation
which excludes,
on the basis of the freedom of choice of contracting parties, from the protection
against discrimination to be conferred by that directive
, the refusal, based on the sexual orientation of a person, to
conclude or renew a contract

with a self
–
employed worker
.

By its judgment delivered today,
2

the Court

holds that the concept of â??conditions for access to employment, to self
–
employment or to o
ccupationâ??
,
which restricts the occupational activities falling within the scope of D
irective
2000/78,
must be construed broadly,
covering the access to any occupational activity, whatever the nature and
characteristics of such activity
.

n not only follows from the text of D
irective 2000/78,

but is also
confirmed by its objectives.

In that respect, the Court notes that
D
irective 2000/78
seeks to eliminate, on grounds
relating to social and public interest, all discriminatory obstacles to a
ccess to livelihoods and to the capacity
.

Nevertheless,
since activit
i
es consisting of the mere provision of goods or services to one or more recipients do not fa
ll within the
scope of that directive
,
the Court
specifies that occupational activities fall
ing

within the scope of Directive 2000/78,

1

Council Directive 200
0/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L
303, p. 16)
.

2

See also the Opinion of Advocate General
Ä?apeta
in Case

C
–
356/21

TP

(
Audiovisual editor for public television
)

and
P
ress release No

145/22
.

Communications Directorate

Press and Informati
on Unit

curia.europa.eu

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!

must be

genuine and
be

pursued in the context of a legal relationship characterised by a degree of stability
.

It is for
t

Similarly
,

the Court finds that

the concept of â??employment and working conditions
, including dismissals and payâ??
,

within the meaning of Directive

2000/78
, must also be con
strued in
a broad sense,
as covering
the conditions
applicable to any form of employment or self
–
employment, whatever the legal form in which it is pursued.

In
addition, as regards the concept of â??dismissalâ??
,
the Court notes that
a person who has been self
–
employed may
also
find himself or herself obliged to stop working due to his or her contractual counterparty and thus be in
a vulnerable position comparable to that of an employed worker who has been dismissed
.
The Court
concludes, subject to the assessme
nt

to be carried out by the referring court
,
that the

decision not to renew th
e

contract
on the ground
of
the

sexual orientation

of the contractor

falls within the scope of D
irective

2000/78.

In the event that
the referring court
were to find

that
there wa
s
discrimination
, the Court considers that it cannot be
justified on
one of the grounds referred to in Article

2(5) of Directive 2000/78

establishing an exception to the
principle of the prohibition of discrimination
.
In that regard, the Court observes tha
t
while the Polish legislation
appears

to protect the rights and freedoms of others
,
more specifically freedom of contract, it is not necessary for
the purposes of
safeguarding that freedom.

According to the Court
,
the fact that the

Polish legislature

prov
ide
d

for a number of exceptions to the freedom to
choose a contracting party

shows that it
itself considered that discrimination could not be regarded as necessary for
. Lastly, the Co
urt

notes that
to accept
that freedom of contract allows a refusal to contract with a person on the ground of that personâ??s sexual
orientation would deprive Directive 2000/78
, and the prohibition of any discrimination based on that
ground,

of its practical

effect
.

NOTE:

A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which
Union law or the vali
dity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the
national court or tribunal to dispose of the case in accordance with the Courtâ??s decision, which is similarly binding on
other national courts or tribunals

before which a similar issue is raised.

Unofficial document for media use, not binding on the Court of Justice.

The
full text

of the judgment is published on the CURIA website on the

day of delivery.

Press contact: Jacques René Zammit
â??
(+352) 4303 3355

Pictures of the delivery of the judgment are available from ”
Europe by Satellite
”
â??
(+32) 2 2964106