by Anton Ambroziak and Agata Szczęśniak

On 12 January 2023, the Court of Justice of the European Union passed a judgment on the discrimination of a former employee of Poland’s state television. Jakub Kwieciński worked for TVP for eight years on a specific task contract. He worked in graphic design and editing. His contract was not renewed in December 2017, even though he was previously on the schedule for the following month. What had changed?

He and his boyfriend, Dawid, posted a Christmas video in the social media. It featured single-sex couples, including Jakub and Dawid. According to Kwieciński, the fact that he is gay directly affected the decision of the TVP authorities to discontinue the collaboration.

CJEU has no doubts

The CJEU issued a ruling stating that there is an entitlement to protection against discrimination regardless of the basis of employment.

#ECJ: #SexualOrientation should not be a reason to refuse to conclude a contract with a self-employed worker #discrimination #publictelevision 👉 https://t.co/ATb3CgbPxg

— EU Court of Justice (@EUCourtPress) January 12, 2023

According to the Campaign Against Homophobia, an NGO, the ruling is a landmark decision because it sets the standard for the protection of LGBT people in employment.

When considering the case, the Polish court had doubts as to whether the anti-discrimination laws applied to civil law contracts. It also wondered whether, since companies in the EU are free to choose their trading partners, perhaps self-employed people are not encompassed by the laws on discrimination, especially because of their sexual orientation.

The opinion of the Advocate General of the CJEU, Tamara Ćapeta, in September 2022 already rebutted the arguments of the Polish courts. According to the CJEU, contractual freedom does not justify any form of unequal treatment.

‘The Polish government is behaving like a pyromaniac, setting fire to our legal system,’ comments Jakub Kwieciński. ‘In this case, the Court holds the role of the fire brigade which puts out the fires caused by Ziobro’s reforms. I am happy with this ruling because it confirms that discrimination based on sexual orientation in all types of employment is illegal. It’s just a pity we have to go abroad for such obvious conclusions.’

What will happen now? The CJEU has answered the preliminary question posed by the Warsaw court. The case will therefore return to the court’s calendar and the court will issue a judgment based on the CJEU’s interpretation of the provisions of the anti-discrimination directive.

TVP suddenly fires a gay employee

‘My duties were taken away from me overnight and I was thanked for my cooperation. The order was supposed to have come from top management. The coincidence of dates, as well as the information we received from our colleagues, leads us to believe that the reason for this decision was my orientation. All my experience, knowledge and achievements were struck off in a single moment, all because I love David and I am not ashamed of talking about it. Just before I left, I also heard about comments that were supposed to have been passed when the decision against me was made: “he should be happy he had hidden himself away for so long and it was only after two years that we realized he was working for us,” wrote Jakub Kwieciński in the social media in December 2017.

Kwieciński and his partner, namely Jakub and Dawid, make up a popular duet in the social media. They got married in Madeira in June 2017.

Kwieciński went to court after the contract from TVP was not renewed – he accused TVP of discrimination based on his sexual orientation. He was legally supported by the Campaign Against Homophobia.

The Polish court asks the CJEU

The case went to the District Court for Warszawa-Mokotów.  This court approached the CJEU for an interpretation of EU law, i.e. it asked for a so-called preliminary ruling.

So it behaved like a European court: it asked the CJEU to explain how to apply Polish regulations so that they comply with the law and values of the whole of the EU. Meanwhile, the CJEU was not a ‘foreign’ court in this case – although it is located abroad – but a court of the highest instance, whose knowledge must be drawn upon because of the lameness of Polish laws.

What exactly did the court want to know? This was about the application of the anti-discrimination directive.

EU Directive 2000/78 prohibits discrimination ‘on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation’.

Meanwhile, Article 3 of this Directive states that it also applies to self-employment.

However, the court in Mokotów acknowledged that ‘the extent to which self-employed people benefit from the protection afforded by the [EU] Directive is not clear.’

The court had one more doubt. Perhaps the provisions on discrimination do not apply to ‘freedom of choice of a party to a contract’, it wondered.

This is because, according to the Polish Act on Equality, contractual freedom can be restricted in order not to discriminate against someone, but the conditions do not encompass discrimination based on sexual orientation (but purely discrimination based on gender, race, ethnicity or nationality).

Freedom of choice, not discrimination?

It was precisely the ‘freedom of choice of the party’ that the representative of the Polish government referred to during the hearing before the CJEU in June. According to him, the discrimination prohibition only applies at the time of setting up a business. Whereas terminating or entering into a contract with a specific person lies within the framework of the freedom to choose the trading partner.

TVP’s management argued in Luxembourg that this is not about sexual orientation:

‘The contract with Mr Kwieciński’s firm expired on 31 December 2017 and was not renewed, just as has taken place in several other cases. No considerations other than factual ones were taken into account when making this decision,’ said TVP’s representative.

Translated by Roman Wojtasz

The article was published in Polish in OKO.press on 12 January 2023.