A Closer Look at Worker Protections: Analyzing the ECJ’s Ruling in Case C-356/21
By 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
Introduction
The EU Court of Justice (ECJ) tackled the issue of discrimination based on sexual orientation in the case of TP « (Monteur audiovisuel pour la télévision publique)», Case C-356/21. This pivotal ruling expands upon the earlier HK v Danmark and HK/Privat case (Case C-587/20) and has been praised for its progressive approach to EU anti-discrimination law. Notably, it provides a broad definition of ‘workers’ protected under the law, encompassing self-employed individuals and those who ‘provide goods and services’.
Case Background
J.K., the applicant, worked for TP, a Polish public television channel, under consecutive short-term contracts as a freelancer from 2010 to 2017. He consistently received positive evaluations for his work editing promotional materials. However, following the online publication of a Christmas music video featuring J.K. and his partner promoting tolerance towards same-sex couples, TP abruptly canceled his upcoming work shifts and did not renew his contract. J.K. subsequently filed a lawsuit alleging discrimination based on his sexual orientation, citing the timing of the video release and other concerning events. The Polish court, uncertain about the extent of protection offered to freelancers under the ‘Equality Framework’ Directive, sought clarification from the ECJ.
Analysis
Potential Discrimination Not Fully Addressed
Both the Advocate General and the ECJ focused primarily on the scope of protection offered by the ‘Equality Framework’ Directive rather than directly assessing the potential discrimination faced by J.K. While acknowledging the referring court’s assumption that J.K.’s sexual orientation was the reason behind the cancelled contract, they did not delve into the specifics of the case. Several points, such as the close timing between the video’s release and the contract cancellation, the potential application of the Hakelbracht ruling on retaliation, and the sarcastic remarks made by a TP employee, all suggest a possible link between J.K.’s sexual orientation and the decision not to renew his contract. The referring court’s observation that J.K.’s sexual orientation was “common knowledge” within TP further complicates the situation, prompting questions about potential discrimination and its connection to J.K.’s freedom of expression.
Broadening the Scope of Protection Against Discrimination
The ECJ delved into the meaning of “conditions for access to employment, self-employment, or occupation” as stated in Article 3(1)(a) of the ‘Equality Framework’ Directive. Referencing its prior judgment in HK v Danmark and HK/Privat, the Court reaffirmed that these terms should be interpreted expansively, encompassing any form of professional pursuit. This interpretation suggests that the Directive’s protection extends beyond individuals traditionally recognized as “workers” under Article 45 of the TFEU and encompasses various professional endeavors.
Defining ‘Work’ and Distinguishing it from ‘Provision of Goods and Services’
While acknowledging the broad spectrum of activities protected by the Directive, the Court distinguished them from “the mere provision of goods and services.” It emphasized that protected activities must be genuine, undertaken within a formal legal framework, and demonstrate a degree of stability. The Court found that J.K.’s work history suggested his work fulfilled these criteria, implying he was protected by the Directive even if his engagement with TP wasn’t strictly categorized as ’employment’ or ‘self-employment.’ However, the Court’s exclusion of “mere provision of goods and services” from the Directive’s scope raises questions. This distinction contradicts the earlier assertion that any occupational activity is covered and creates ambiguity for individuals engaged in non-traditional forms of work, which are increasingly common in today’s fragmented labor market. The AG, in contrast, proposed a broader definition of “work,” emphasizing its personal nature and the varying legal frameworks that might govern it. She argued that focusing on the essence of the work performed, rather than its contractual classification, could offer more comprehensive protection against discrimination.
Examining the Scope of ‘Dismissal’
The Court considered whether Article 3(1)(c) of the ‘Equality Framework’ Directive, which addresses discrimination concerning “employment and working conditions, including dismissals,” applied to this case. Although this article doesn’t explicitly mention “self-employment,” the Court, aligning with the AG, determined that the broad interpretation of the Directive’s objective necessitates a broad understanding of its provisions. Therefore, “dismissal” encompasses the unilateral termination of any activity protected under Article 3(1)(a), regardless of its contractual classification.
Balancing Anti-Discrimination Measures with Freedom of Contract
The ECJ addressed potential conflicts between the ‘Equality Framework’ Directive and the freedom of contract enshrined in Polish law and Article 16 of the EU Charter of Fundamental Rights (Freedom to conduct a business). The Court concluded that the Directive’s limitations on freedom of contract are proportionate, considering the law’s purpose to prevent discrimination and the principle that freedom of contract is not absolute.
Conclusions
This ruling significantly impacts EU equality and labor law. Its broad interpretation of “workers” and “occupational activity” extends the protection of the ‘Equality Framework’ Directive and similar EU directives to a larger group of individuals, including those engaged in less traditional forms of work. While the full impact of this ruling on LGBTQ+ rights requires further analysis, it undoubtedly offers greater protection for individuals facing discrimination based on sexual orientation. Regarding labor law, this ruling’s emphasis on the individual performing the work, rather than the contractual framework, could lead to a more inclusive understanding of worker rights in the future. However, further clarification is needed regarding the exclusion of “mere provision of goods and services” from the Directive’s scope and its potential impact on individuals in increasingly flexible work arrangements.