Opinion of Advocate General Ćapeta delivered on 8 September 2022.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2022:653
• Date: 08 September 2022

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 8 September 2022(1)

Case C‑356/21

J.K.

v

TP S.A.,

joined parties:

PTPA

(Request for a preliminary ruling from the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court for the Capital City of Warsaw in Warsaw, Poland))

(Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 3 – Prohibition of any discrimination based on sexual orientation – Self-employed worker – Refusal to renew a contract)

I. Introduction

1. After seven years of a working relationship based on consecutive short-term contracts, TP, a public TV station, refused to sign a new contract for editing services with J.K. because of his sexual orientation. (2)

2. Is J.K., as a self-employed worker, entitled to protection against discrimination based on his sexual orientation under Directive 2000/78?

3. The scope of Directive 2000/78 is the main issue the Court is invited to clarify by the reference of the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court for the Capital City of Warsaw in Warsaw, Poland).

4. The other issue which the reference raises concerns the relationship between the prohibition of discrimination and freedom of contract. The referring court questions the conformity of a provision of national law, which allows sexual orientation to be taken into account as a criterion in choosing with whom to conclude a contract, with Directive 2000/78.

II. Legal framework

A. European Union law

5. Article 1 of Directive 2000/78 (entitled ‘Purpose’) provides that the purpose of that directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.

6. Article 2 of that directive (entitled ‘Concept of discrimination’) states:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

…

5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, 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.’

7. According to Article 3 (entitled ‘Scope’):

‘1. Within the limits of the areas of competence conferred on the [EU], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

…

(c) employment and working conditions, including dismissals and pay;

…’

B. Polish law

8. According to Article 2(1) of the Ustawa o wdrożeniu niektórych przepisów prawa Unii Europejskiej w zakresie równego traktowania (Law on the implementation of certain provisions of EU law regarding equal treatment) of 3 December 2010 (Dz. U. of 2020, item 2156 – consolidated version) (‘the Polish Equality Law’), that ‘law shall apply to natural persons, as well as to legal persons and unincorporated organisational units that are granted legal capacity under the law’.

9. More precisely, Article 4(2) of the Polish Equality Law indicates that that law is to apply to ‘the conditions for taking up and pursuing economic or professional activities, including in particular in the context of an employment relationship or work performed under a civil-law contract’.

10. Article 5(3) of the Polish Equality Law states that that law does not apply to ‘the freedom of choice of parties to a contract so long as that choice is not based on sex, race, ethnic origin or nationality’.

11. Article 8 of the Polish Equality Law states:

‘1. The unequal treatment of individuals on the basis of sex, race, ethnic origin, nationality, religion, creed, belief, disability, age or sexual orientation shall be prohibited with respect to:

…

(2) the conditions for taking up and pursuing economic or professional activities, including in particular in the context of an employment relationship or work performed under a civil-law contract.

…’

12. Article 13 of the Polish Equality Law reads:

‘1. Anyone in respect of whom there has been a breach of the principle of equal treatment shall have the right to compensation.

2. In cases involving a breach of the principle of equal treatment, the provisions of the [ustawa – Kodeks cywilny (Law on the Civil Code) of 23 April 1964] … shall apply.’

III. The dispute in the main proceedings and the question referred for a preliminary ruling

13. Between 2010 and 2017, J.K. concluded a series of consecutive short-term contracts on a self-employed basis with TP, a company which operates a nationwide public television channel in Poland and whose sole shareholder is the State Treasury.

14. On the basis of those contracts, the work performed by J.K. included the preparation of edited material for trailers or features, which were subsequently used in the channel’s promotional materials. He performed his tasks within the channel’s internal organisational unit – Redakcja Oprawy i Promocji Programu 1 (Channel 1 Editorial and Promotional Office), whose manager was W.S. Within the framework of the contracts concluded for specific work, J.K. performed scheduled weekly shifts during which he prepared materials for the channel’s promotional programmes. W.S., his immediate supervisor, assigned shifts to J.K. and a second journalist who performed the same tasks, each of them working two one-week shifts per month.

15. As of August 2017, a reorganisation of TP’s organisational structure was planned, in which J.K.’s tasks were to be transferred to a newly established unit, the Agencja Kreacji Oprawy i Reklamy (Creative and Advertising Agency). Two new employees were appointed to carry out the reorganisation and to vet the associates to be transferred to the new agency.

16. At meetings in late October and early November 2017, at which one of the new employees responsible for the reorganisation was present, J.K. received a positive evaluation and was listed among the associates who had successfully passed the vetting procedure.

17. On 20 November 2017, a contract for specific work was concluded between J.K. and TP for a period of one month.

18. On 29 November 2017, J.K. received his working hours for December 2017. They provided for a fortnight of service in total, with the first week due to begin on 7 December 2017 and the second on 21 December 2017.

19. On 4 December 2017, J.K. and his partner published on their YouTube channel a Christmas music video aimed at promoting tolerance towards same-sex couples.

20. Two days later, on 6 December 2017, J.K. received an email from TP cancelling his period of service starting on 7 December 2017.

21. On 20 December 2017, J.K. was informed that he would likewise not be required to report for the period of service scheduled to start on 21 December 2017. He did not therefore perform any period of service during December 2017 as contracted, nor was he, as clarified at the hearing, paid for these contracted services.

22. Ultimately, a new contract (for January 2018) was not concluded between J.K. and TP. The decision to terminate cooperation with J.K. was, according to the reference, made by the persons responsible for carrying out the reorganisation.

23. By application lodged at the referring court, the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court for the Capital City of Warsaw in Warsaw), J.K. is seeking the amount of 47 924.92 zlotys (PLN) (approximately EUR 10 130), together with statutory default interest calculated from the date on which the action was lodged to the date on which payment is made. The amount of PLN 35 943.69 (approximately EUR 7 600) is claimed by way of compensation and the amount of PLN 11 981.23 (approximately EUR 2 530) by way of redress for breach of the principle of equal treatment on the grounds of sexual orientation in the form of direct discrimination in respect of the conditions for accessing and pursuing economic activities under a civil-law contract.

24. In support of his action, J.K. submits that he was the victim of direct discrimination by TP on account of his sexual orientation. He claims that the probable cause of the cancellation of the periods of service and the termination of the working relationship with TP was the publication on YouTube of the aforementioned Christmas music video.

25. TP contends that the action should be dismissed, arguing that neither its practice nor the law guarantees the renewal of business contracts.

26. The referring court explains that the extent to which self-employed workers are covered by the protection of Directive 2000/78 is not clear. It also harbours doubts as to whether Article 5(3) of the Polish Equality Law, which that court considers applicable to the circumstances of the case, is compatible with that directive.

27. In those circumstances, the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court for the Capital City of Warsaw in Warsaw) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 3(1)(a) and (c) of [Directive 2000/78] be construed as permitting the exclusion from the scope of [Directive 2000/78], and consequently...