Chiara De Capitani, linguist agent at
the European Commission and PhD candidate and honorary fellow in European law
at the University of Naples “L'Orientale”. The information and views set out in
this article are those of the author and do not necessarily reflect the
official opinion of the European Commission.
Photo credit: Silar, via Wikimedia Commons
In TP « (Monteur
audiovisuel pour la télévision publique)», Case C-356/21 (the
present case) the EU Court of Justice (ECJ) analyses a case dealing with the
protection of self-employed individuals providing goods and services,
discrimination on the basis of sexual orientation and its balancing with the
right to freedom of contract.
Building on the
previous HK v Danmark and HK/Privat
case (Case C-587/20), this
landmark ruling has been celebrated (Covington & Burling LLP;
Countouris, Freedland and Stefano;
Lasek-Markey) for its
progressive interpretation of the protection provided by EU anti-discrimination
law but, most of all, for its broad definition of which ‘workers’ are protected
by it, “making labour law fit for all those who labour” (Countouris, Freedland and Stefano).
Indeed, this case covers the situation of self-employed workers (whose rights
lack clarity at EU level) but also of workers that may not fall into that
category but ‘provide goods and services’.
Facts of the case
From 2010 to 2017,
J.K. (the applicant) entered into a series of consecutive short-term contracts
with TP, a public television channel in Poland, as a self-employed individual.
During this time, J.K. worked on editing material for trailers and features
that were later used in TP's promotional materials. He worked under the
supervision of W.S. He worked two one-week shifts per month with another
journalist, as assigned by W.S.
In August 2017, TP
was planning to reorganize its structure and transfer J.K.'s tasks to a new
unit. Two new employees were appointed to handle the reorganization and to
assess the associates who would be transferred.
At meetings in
October and November of that year, J.K. received a positive evaluation and was
listed among the associates who passed the assessment. On November 20th, J.K.
and TP entered into a one-month work contract. On November 29th, J.K. received
his work schedule for December, which included two weeks of service.
December 4th, J.K. and his partner
published a Christmas music video promoting tolerance
towards same-sex couples on their YouTube channel. Two days later,
on December 6th, TP cancelled J.K.'s first week of service, and on December
20th, J.K. was informed that he would not be required for the second week as
well. As a result, J.K. did not perform any service in December and was not
paid for it. Subsequently no new contract for specific work was established
between him and TP, and the decision to end the work collaboration was made by
the employee(s) responsible for carrying out the reorganization.
J.K. filed a case
at the District Court for the Capital City of Warsaw (the referring Court)
seeking compensation, claiming that he was the victim of direct discrimination
by TP due to his sexual orientation. He alleges that the probable reason for
the cancellation of his work periods and the termination of his employment with
TP was the publication of the previously mentioned Christmas music video on
YouTube. TP argues that the case should be dismissed, as there is no guarantee
of contract renewal in its practice or law.
The referring Court
is uncertain to which extent self-employed workers are covered by the scope of
the ‘Equality Framework’ Directive
and has doubts about the compatibility of Polish Equality Law with the
Absence of analysis as to whether there was
Recital (15) of the
‘Equality Framework’ Directive states that:
appreciation of the facts from which it may be inferred that there has been
direct or indirect discrimination is a matter for national judicial or other
competent bodies, in accordance with rules of national law or practice […].
Following this and
since the referring court based its request for a preliminary ruling on the
premise that J.K.'s sexual orientation was the reason behind the refusal by TP
to conclude the contract, neither the opinion of Advocate General Tamara Ćapeta
(the AG) nor the ECJ analyse whether the applicant has actually been
discriminated against or not.
This is regrettable
as the case itself raised several interesting elements previously not addressed
by the ECJ.
For one, the fact
that the applicant’s shift was cancelled (and subsequently his contract not
renewed) merely two days after his publication of a video aimed at promoting
tolerance towards same-sex couples is quite suspicious and bears some
resemblance with the Hakelbracht
ruling (Case C‑404/18). In that
ruling, the ECJ clarified that the protection against retaliation afforded by
the ‘Gender Equality Directive’
applies to all employees who have informally supported a person who has been
discriminated against. In that case, a company had dismissed an employee only
eight months after she had objected to their refusal to hire a woman based on the
latter’s pregnancy, a fact that the referring court in that case presumed to be
retaliatory behaviour and that the ECJ duly noted in its ruling (para 24).
This presumption is
all the more legitimate as J.K had worked regularly for seven years for the public
television channel, TP.
decision to end the work collaboration was made by the newly recruited employee(s)
responsible for carrying out the reorganization of the television channels’
structure only a couple of months after the applicant had received a positive
evaluation and was listed among the associates who passed the assessment for
Furthermore, in its
request for a preliminary ruling, the referring court notes that one or two
days after the publication of the Christmas video a meeting took place which
was attended by – among others – the applicant’s immediate supervisor W.S. and the
employees responsible for carrying out the reorganization. While the meeting focused
on the creation of content for Christmas to be broadcasted, one of the employees
responsible for carrying out the reorganization made a sarcastic joke about the
fact that “(Channel 1) already had a spot and its own Santas”. After the
meeting, one of the employees responsible for carrying out the reorganization
(possibly the same who made the sarcastic joke) gave instructions to W.S. to suspend
the applicant and assign his shifts to another person.
The joke during a
meeting expressly referring to the applicant’s video promoting tolerance
towards same-sex couples (where a man dressed as Santa kisses another man) and
following request to suspend him might hint to a correlation between the
suspension (and following non-renewal) of the applicant’s contract and his
So far the ECJ
currently has ruled on three cases (Feryn,
Case C-54/07; Asociaţia Accept, Case C‑507/18, Associazione Avvocatura per i diritti LGBTI,
Case C-507/18 – which I
discussed here) where an employer or a person
perceived as being capable of exerting a decisive influence on the recruitment
policy of an employer stated that they would not hire a person from a protected
category. In these three cases, these statements were always public. In this
specific case, it would have been interesting for the referring Court to ask
the ECJ clarifications as how to assess situations where statements made
privately implying prejudice are followed by a termination decision.
referring court reported that the employees and associates of the editorial
office where the applicant performed his tasks within the defendant’s organisation
were aware of the applicant’s sexual orientation and that the defendant (TP)
has argued that “the applicant’s sexual orientation was common knowledge”. This
argument resonates in part with the Lee v. the United Kingdom European Court of
Human Rights ruling (Application no. 18860/19) where the defendants (a bakery) had argued
that they had employed and served gay people in the past and that their refusal
to provide a good was not based on the applicant’s sexual orientation but on
their refusal to put a pro-same sex marriage slogan on a cake. In the author’s
opinion, this could have led to interesting reflections not only as to the discrimination
of the present cases’ applicant on matters of employment, but also its
implications as a possible retaliation to his right to freedom of expression in
producing a video aiming at tolerance towards same-sex couples.
Scope of the protection afforded against
discrimination in relation to access to employment
The first question
the ECJ and the AG try to answer is whether Article 3 (1)(a) of the ‘Equality
Framework’ Directive covers situations such as the one in the present case.
According to said provision, the directive applies to ‘conditions for access to
employment, to self-employment or to occupation’. Both the ECJ and AG proceed
with examining what ‘conditions for access to employment, self-employment or to
occupation’ entail: since the directive does not refer to national law to
define this concept, it must be given an autonomous and uniform interpretation
across the European Union.
The Court starts by
noting, following its previous reasoning in HK
v Danmark and HK/Privat, that the usual meaning in everyday language of ‘employment’,
‘self-employment’ and ‘occupation’ must be construed broadly and “cover
conditions for access to any occupational activity, whatever the nature and
characteristics of such activity” (para 36). In HK v Danmark and HK/Privat the Court had found that the post of
sector convector of an organisation of workers constituted a real and genuine
professional activity (para 35). Therefore, the applicant in that case was
protected by the ‘Equality Framework’ Directive against discrimination on
grounds of her age, even though her post was a political post (decided with
elections by the members of that organisation) (paras 36–39).
The Court reaches a
similar conclusion in the present case, noting that it was not the intention of
the EU legislature to restrict the application of the ‘Equality Framework’
Directive solely to positions held by individuals classified as ‘workers’
according to Article 45 of the Treaty on the Functioning of the European Union (TFEU).
As a matter of fact, whereas the ‘Equality Framework’ Directive was adopted on
the basis of the (current) Article 19 (1) TFEU conferring the EU the power to
combat discrimination, Article 45 TFEU only protects workers “as the weaker
party in an employment relationship” (HK
v Danmark and HK/Privat para 34, present case paras 40-43). In fact, the
Court reiterates, the ‘Equality Framework’ Directive applies to “all persons
[…] whatever the branch of the activity and at all levels of the professional
hierarchy” and was adopted to eliminate all discriminatory obstacles in the
field of employment” (HK v Danmark and
HK/Privat paras 29, 34, present case paras 38, 43).
What constitutes ‘work’ and its intersection
with ‘provision of goods and services’
The Court, while
noting that a wide range of occupational activities are protected by the ‘Equality
Framework’ Directive, proceeds to highlight activities falling out of the scope
of that directive which are “the mere provision of goods and services to one or
more recipients” (para 44).
Court adds that, to fall under the scope of the directive, occupational
pursued in the context of a legal relationship that is
by a degree of stability (para 45).
The Court does not
further define these three requirements but applies them to the present case
(while leaving it for the referring court to decide whether the applicant
satisfies these criteria): J.K prepared personally specific work for the public
television, depended on the assignment of his shifts and had received a
positive evaluation (para 46). In other words, the Court finds, J.K pursued a
genuine and effective occupational activity on a personal and regular basis for
the same recipient, which enabled him to earn (at least in part) his livelihood
The fact that the
three criteria above seem to apply to the present case creates a situation
where his ‘occupational activity’ with the company does not even need to be
classified as ‘employment’ or ‘self-employment’ to fall under the scope of the
directive (para 47).
interpretation of the scope of the directive is highly welcome and will likely
protect a lot of self-employed individuals and providers of goods and services
that are currently left out in an overly de-regularised and flexible labour
market. The shift of focus from the AG and the Court from the conditions of
employment decided by an employer to, rather, the personal aspects of the work
provided by the worker have been greeted favourably by academics (Countouris, Freedland and Stefano).
exclusion by the court of “the mere provision of goods and services” from the
scope of the directive is not very clear and seems to rebut its previous
finding that “any occupational activity, whatever the nature and
characteristics of such activity” is covered by the scope of the directive.
Coupled with the requirements that an occupational activity “be genuine”,
“pursued in the context of a legal relationship” and that said relationship
must be “characterised by a degree of stability” seem to exclude from the scope
of the directive several occupational activities whereas currently, as the AG
finds, “non-standard forms of work have increased, causing fragmentation in the
labour market” (para 63).
definition of ‘services’ in Article 57 TFEU provides that they “shall be
considered to be “services” within the meaning of the Treaties where they are
normally provided for remuneration”. This creates – for the author – a
presumption that the payment of these services implies the existence of an
occupational activity. The AG underlines in her opinion that a person may be
simultaneously self-employed and a provider of goods and services since “as
recipients of their goods or services, we ‘buy’ their work and the end product
of that work at the same time” (para 41).
Secondly, the Court
does not further define in particular what constitutes a “genuine” occupational
activity and while the author agrees that the existence of a legal relationship
and its level of stability do create a presumption of an existing occupational
activity, it is unclear why the lack thereof should be excluded from its scope.
With regards to the “level of stability” required of the legal relationship, it
is interesting to note that the AG believes that in the present situation the
“continuity of work” of the applicant (who had worked for seven years for TP)
does not make any difference: “previous working relationships are unrelated to
applying for a job and succeeding in concluding a contract” (paras 95-97).
Conversely, the AG
opinion provided a far-reaching definition of what may constitutes “work”. She
argues that the ‘Equality Framework’ Directive aims at protecting access to
work from discrimination “in all the different forms in which work can be
offered” (para 61). For her, work refers both to the activity and the result of
that activity and the way in which someone approaches the same occupational
task vary widely:
person can earn his or her living by working for only one or for multiple
‘employers’; for longer or shorter periods of time; part-time or only
seasonally; at one place, or at different places; using his or her own tools or
somebody else’s. Likewise, work can be agreed on the –basis of time (for
example, 20 hours per month), or on the basis of the tasks to be performed (for
example, painting six walls white) (para 64).
adds, different legal frameworks should not be relevant for the application of
the directive as long as the person engages in “personal work” (para 66). She
further adds that whether a potential employer ‘buys’ the work or the ‘goods
and services’ provided by a person, a company’s refusal to conclude a contract
because of a discrimination ground unrelated to the worker’s capacity to
perform the work prevents their access to that particular job and, therefore,
limits their access to work (paras 79-80):
is no problem accepting that such discrimination should not be allowed if [the
person providing the work was] seeking traditional employment. Why should the
same not apply in all other situations where [that person] was offering [his/her]
work on the basis of contracts for goods or services concluded with [them] as a
person, or on the basis of contracts for goods or services concluded with [their]
company, but promising [their] personal work? (para 81)
highlights that exempting the personal provision of goods and services from the
purview of the ‘Equality Framework’ Directive could create a loophole that
would allow companies or individuals to bypass anti-discrimination laws by
opting to purchase goods or services instead of employing a service provider
(para 85). This would be contrary to the useful effect of that directive, she
Both the Court and
the AG come to the conclusion that the ability to enter into a contract for
specific work may be an essential factor for someone like the applicant to
effectively pursue their professional activities and that, thus, such ability
may fall under the scope of ‘conditions for access’ to self-employment (present
case para 50, AG opinion paras 80, 88).
The Court and AG
proceed to examine whether Article 3 (1)(c) applying the protection conferred
by the ‘Equality Framework’ Directive to “employment and working conditions,
including dismissals” applies to the present case.
That provision does
not explicitly mention ‘self-employment’ but the AG and the Court’s findings
described above on Article 3 (1)(a) apply here as well (present case paras
53,54, AG opinion para 101): since the ‘Equality Framework’ Directive was
adopted to remove all discriminatory obstacles, its terms must be construed
follows that the protection conferred by [the directive] cannot depend on the
formal categorisation of an employment relationship under national law or on
the choice made at the time of the appointment of the person concerned between
one type of contract and another (present case para 55).
While the Court
recognises that the concept of ‘dismissal’ is usually applied to the
termination of an employment contract it agrees with the AG that Article 3
(1)(c) also covers the unilateral termination of any activity covered by
Article (1)(a) of that directive (present case paras 60-62, AG opinion para
Exceptions on grounds
of public security, public order, prevention of criminal offences and
protection of the health and rights and freedoms of others
Article 2 (5) of the ‘Equality Framework’ Directive lays
down exceptions to the application of the directive which “must be interpreted
strictly” (present case para 71, AG opinion para 105): where national measures are
necessary for public security, for the maintenance of public order and the
prevention of criminal offences, for the protection of health and for the
protection of the rights and freedoms of others.
Furthermore, while the Directive mandates that
discrimination on the grounds of sexual orientation in employment is
prohibited, Poland's transposition of the directive only extends this
prohibition to sex, race, ethnic origin, and nationality with respect to
freedom of contract.
The AG and the Court proceed to balance the rights enshrined
in the ‘Equality Framework’ Directive with the freedom of contract granted by
the Polish domestic law and Article 16 of the Charter of Fundamental Rights of
the European Union (‘Freedom to conduct a business’). An analysis of the aims
of said Polish law (protection against discrimination) coupled with the fact
that freedom of contract is not an absolute right leads the Court and AG to the
conclusion that freedom of contract has not been disproportionately limited by
the ‘Equality Framework’ Directive.
This landmark ruling will likely have a significant impact
on EU equality and labour law alike.
Firstly, all grounds of discrimination currently recognised
by secondary EU law will benefit from this ruling. Indeed, the scope of
application of all EU Equality Directives that have similar wording to that of the
‘Equality Framework’ Directive will be impacted (Countouris,
Freedland and Stefano) by the Court’s definitions of ‘conditions for access
to employment, to self-employment or to occupation’, ‘self-employment’ and ‘occupational
With regards to LGBTIQ+ rights specifically, while the
ruling will have a clear-cut impact on bisexual and homosexual individuals, it
is not clear what its impact could be as regards other members of the LGBTIQ+
community. Indeed, existing EU gender equality legal framework anchors
transgender and intersex equality within the binary concept of sex, likely excluding
non-binary persons (European
Commission, Directorate-General for Justice and Consumers, Brink, M., Timmer,
A., Dunne, P., et al., pp. 53-54). Furthermore, existing provisions on gender
identity have covered only individuals who intend to undergo or have undergone
gender reassignment surgery (European
Union Agency for Fundamental Rights, p.46).
It also remains to be seen whether categories of individuals
that are protected by Article 21 of the Charter of Fundamental Rights of the
European Union but not by the scope of the directive (discriminations based on
social origin, genetic features, language, political or any other opinion,
property, birth) can be considered to be afforded the same protection.
Secondly, with regards to labour law, the focus on the
person doing the work and the ‘personal’ work they provide instead of the
contract the employer has negotiated with them will hopefully be further
analysed by the AG and the Court in future rulings.
Furthermore, as noted by the Court, the protection afforded
by the directive “extends to the professional relationship concerned in its
entirety”. While the present case concerned the conditions for pursuing and
terminating an activity, the author believes it safe to assume it affords
protection to workers also while performing their ‘occupational activities’
under the scope of the directive. For instance, other sections of Article 3
(1), may afford protection against discriminatory retaliation with regards to
promotions, vocational guidance and training and pay.