On 12 January 2023, the Second Chamber of the CJEU delivered its decision in Case C-356/21 J.K. v TP S.A. which represents an important contribution to EU anti-discrimination law. Having examined the Framework Directive 2000/78, the Court has confirmed that the prohibition of discrimination on the grounds of sexual orientation applies not only to access to employment, but also to self-employment, provided there is a stable relationship with the client. This case also touches upon the broader issue of the rights of self-employed persons which lacks clarity at the EU level.

The defendant in this case was TP which stands for ‘Telewizja Polska’ – the Polish national TV broadcaster which is owned entirely by the state and since 2015 has been controlled by the far-right government led by the PiS (Law and Justice) party. The leadership in Poland has been pushing an openly anti-LGBT+ campaign, notably through the state media channels. One example that made the headlines back in 2020 was the creation of the so-called ‘LGBT-free zones’ by a number of municipalities and regions where PiS is in charge of the local government.

The applicant, J.K., had a registered business and in this capacity provided audio-visual content to the national broadcaster TP on a business-to-business basis. This working relationship had lasted seven years on a series of consecutive short-term contracts. Typically, J.K. performed two weekly shifts per month, while during the remaining two weeks of each month the service was provided by another freelance colleague. In late 2017, the state broadcaster underwent some internal restructuring, as a result of which J.K.’s work was to be managed by a different unit. On this occasion, he was reassured that he would not be personally affected by the restructuring. Accordingly, his contract was renewed for another month. In December 2017, the applicant together with his same-sex partner, published a YouTube video to promote equality which showed different same-sex couples celebrating Christmas festivities. Two days later, J.K’s planned weekly shift was cancelled by TP via email. His other shift which had already been scheduled for late December was later also cancelled, and no further contract between J.K. and Telewizja Polska was ever concluded.

“Looking at the circumstances of this case, it is clear that J.K. was more than merely a business providing services to Telewizja Polska. He had worked for the state broadcaster for two weeks every month for seven years, and his livelihood was clearly affected when the contract was terminated due to his sexual orientation. It is important that the CJEU in this judgment has recognised his genuine status.”

A superficial reading of J.K v TP would suggest, firstly, that the CJEU has merely confirmed the literal wording of Article 3(1) of the Framework Directive 2000/78 and, secondly, that Poland has incorrectly transposed the Directive. Upon closer examination, however, neither of these statements is accurate as there is far more to unpack from this interesting judgment. Regarding the Framework Directive, while it might be easy to say in one breath that the prohibition of discrimination applies to access to employment, self-employment and occupation, the fact that it might actually also cover self-employed persons with a registered business has potentially significant consequences for the freedom to provide services. The CJEU has previously been confronted with the issue of self-employed contractors in Case C-413/13 FNV Kunsten. While that judgment concerned specifically the overlap between the right of self-employed persons to collective bargaining and EU competition law, the broader issue remains the same: where to draw the line between those self-employed who are in a quasi-employment relationship and those who are genuine businesses providing services and are not dependant on a single client?