No discrimination rule also applies to the external workers (self-employed) in the EU, rules the SJEU

10. 2. 2023

In January 2023, the Court of Justice of the European Union (CJEU) issued another interesting ruling stating that rules concerning discrimination also applies to other contractual relationships than the employment.

The case in question concerns a man, whose cooperation agreement with the Polish public TV station was terminated and he was also denied any future agreement after previous years of cooperation. Shortly before this, he recorded a video with his partner to support intimate relationships between people of the same sex.

Because of that, an action for damages was filed to the Polish District Court, but unsuccessfully. He therefore appealed to the Regional Court. The Regional court initiated a preliminary ruling proceeding to the CJEU to determine whether the Polish law is in line with the directive establishing a general framework for equal treatment in employment and occupation, which prohibits discrimination on grounds of sexual orientation. The claimant was not an employee of the public television station but worked as a so-called freelancer, i.e., a self-employed person. It should be as well noted that the protection against discrimination guaranteed by Polish law do not generally apply to self-employed and to different sexual orientation.

According to the interpretation of the CJEU, the above-mentioned Directive applies to all legal relations related to the livelihood of a person through work, i.e., not only to the employment. The Court based its decision on the fact that the terms 'occupation' and 'employment' are used in practice to refer to any contractual relationship in which the person concerned earns their income by working and that such a contractual relationship shows certain signs of stability. It was also pointed out that the prohibition of discrimination is, moreover, enshrined in the Treaty on the Functioning of the European Union, which applies, inter alia, as well to persons with another sexual orientation.

In the Czech legal framework, there is a common protection against discrimination for employees and freelancers, i.e. self-employed persons, regulated by the Anti-Discrimination Act, which also prohibits discrimination on the basis of sexual orientation. The latter allows the person concerned to sue for damages, personal injury as immaterial damage or simply to obtain a waiver of unfavorable differential treatment. The Civil Code also provides for a remedy under the provisions on compensation for harm to the natural human rights.

The person concerned is obliged to prove the discriminatory behavior of the contractual partner, but not completely. In fact, the main burden of proof lies with the defendant to prove that it did not discriminate, thereby significantly strengthening the rights of the victims.

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