Opinion of Advocate General Tamara Ćapeta
Freedom of contract cannot justify discrimination on the basis of sexual orientation
Case C-365/21 of the Court of Justice of the EU (CJEU) concerns a company’s refusal to sign a new contract for services with a self-employed audio-visual editor based on his sexual orientation. A reference for preliminary ruling was submitted by a Warsaw District Court to the CJEU to understand whether, as a self-employed worker, the claimant is protected by the framework directive on equal treatment in employment and occupation - EU Council Directive 2000/78/EC.
In her opinion delivered on 8 September 2022, Advocate General (AG) Tamara Ćapeta ruled that the freedom to contract a self-employed person cannot justify discrimination on the basis of sexual orientation.
The facts of the case concern J.K., an audiovisual editor who had been working as a freelancer for a Polish public television station for 7 years and which put an end to their collaboration after the editor posted a video on YouTube together with his partner aimed at promoting tolerance towards same-sex couples.
With reference to recital 4 of Directive 2000/78 and its reference to Convention 111 of the International Labour Organisation as well as recital 9, AG Ćapeta recalls that the directive explicitly refers to the conditions of access to both employment and self-employed activities insofar as a person engages in personal work, irrespective of the legal form under which the work is provided [para. 66].
AG Ćapeta also found that Polish legislation allowing sexual orientation to be taken into account when selecting a contractor does not fall within the permitted exceptions to Directive 2000/78 and that the directive does not disproportionately restrict freedom of contract [para. 121].
As far as next steps are concerned, the CJEU judges will deliver a judgment on this case at a future date.
The opinion can be found on the CJEU's website here.