Poland regularly ranks at the bottom of sexual minority tolerance ratings[1]; local and foreign supporters of the LGBT community regularly speak out against the tendencies of not only Polish politicians in this area. This was for example also in the case, when the Polish Minister of Justice demanded the reversal of all previous convictions against a print shop worker, who refused to provide service to an LGBT customer.[2]

One of those, who recently decided to confront the injustice and address the hateful behaviour through legal means, is a creator of videos, audio-visual montages and promotional trailers for Polish public television. The plaintiff, as a self-employed person, provided editorial services to the television station for approximately seven years, until this cooperation was unilaterally terminated by the defendant company. Coincidentally, the defendant company did so two days after the plaintiff and his partner posted the Christmas music video “Pokochaj nas w święta” (“Love us at Christmas”) on YouTube. The video[3] shows same-sex couples celebrating Christmas in order to promote tolerance towards sexual minorities. The plaintiff identifies the publication of the video in question as the reason for the termination of cooperation and for the defendant company not entering into further work contracts and feels to be a victim of direct discrimination in the pursuit of gainful employment because of his sexual orientation.

The defendant company argued that Polish law does not in any way guarantee the rights of self-employed persons to protection against termination of a contract or against not entering in a contract, based on which the self-employed person would provide his services. On the ground that it was not an employment contract, the company considered the applicant’s claim for compensation for damage and non-material damage in the amount of PLN 47,924.92 (approximately CZK 237,530) to be groundless. According to the company, it is a normal business risk when, as a customer, it ceased to be interested in the services of a self-employed person.

The Warsaw Regional Court thus referred the case to the Court of Justice of the European Union (CJEU), which ruled on the preliminary question on 12 January this year. The question concerned the assessment of whether or not the independent economic activity of self-employed persons falls within the concept of “self-employment” as defined in the Employment Equality Directive[4] (“the Directive”). If the activities of self-employed persons could not be subsumed under this term, would the Directive not thereby be deprived of its useful effect?

The CJEU has ruled unequivocally. Sexual orientation cannot be a reason for refusing to enter into or extend a contract with a self-employed person. Termination of long-term cooperation that is clearly due to the sexual orientation of the self-employed person is inadmissible. In her opinion, the Advocate General stated that “[...] a contracting party’s freedom of choice may legitimately be restricted in order to protect other important values in a democratic society, such as equal treatment in employment and occupation. The Directive specifically guarantees this value without affecting the substance of the freedom to choose the contracting party. Specifically, economic entities can still choose the most suitable person for the job based on the reasons that are relevant to the job.”[5]

The Polish public broadcaster’s claim of contractual freedom is thus irrelevant, and contractual freedom has limits in the rule of law – it is limited by the protection of other important values.

The aim of the Directive is to provide protection against discrimination in access to any work that a person does for a living. Under this understanding of the purpose of the Directive, there is no reason to exclude self-employed workers from its scope. According to the Court of Justice of the EU, self-employed workers, like employees, are protected and entitled to protection against discriminatory conduct in access to or performance of their work.

[1] See e.g. TILLES, D.: “Poland ranked as worst country in EU for LGBT people”, available online here: https://notesfrompoland.com/2020/05/14/poland-ranked-as-worst-country-in-eu-for-lgbt-people/.

[2] RPO, Sprawa drukarza z Łodzi [The printer from the Lodz case] (14 June 2018) https://www.rpo.gov.pl/pl/postepowania-strategiczne-rpo/sprawadrukarza-z-lodzi, accessed 28 July 2018.

[3] JAKUB & DAWID – POKOCHAJ NAS W ŚWIĘTA, YouTube, available online here: https://www.youtube.com/watch?v=b7fpUj9zxfs

[4] Directive 2000/78, Article 3(1)(a) and (c), guaranteeing protection against discrimination based in particular on sexual orientation as regards conditions of access to employment, self-employment or occupation, including selection criteria and conditions of recruitment, as well as conditions of employment and working conditions.

[5] Attorney General T. Ćapeta: Sexual orientation cannot be a reason for refusing to contract with a self-employed person (europa.eu) available online here: https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-09/cp220145cs.pdf

Author: Veronika Odrobinová, Gabriela Jandová