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.
However, on 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 directive.
Absence of analysis as to whether there was discrimination
Recital (15) of the ‘Equality Framework’ Directive states that:
The 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.
Additionally, the 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 said reorganization.
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 sexual orientation.
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.
Finally, the 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).
Furthermore, the Court adds that, to fall under the scope of the directive, occupational activities must:
be pursued in the context of a legal relationship that is
characterised 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 (para 47).
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).
This broad 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).
Nevertheless, the 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).
Firstly, the 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:
A 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).
Therefore, she 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):
There 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)
Finally, she 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 finds.
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 broadly:
It 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 102).
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 activity’.
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.