Prohibition of refusal to conclude or submit a B2B contract due to the sexual orientation of the contractor (J.K. v. TP S.A.) – commentary on the judgment of the Court of Justice of 12 January 2023, C-356/21

Abstract

The study constitutes an approving assessment of the position of the Court of Justice of the EU, which was taken in the context of the application of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation as a result of a preliminary question referred by a national court. It concerns important issues from the point of view of economic law, namely the rights and freedoms fundamental to economic law, i.e. the freedom to conduct economic activity, which may be subject to certain restrictions due to the rights and freedoms of other people. The analysis carried out shows that the Act of 27 November 2000 establishing a general framework for equal treatment in employment and occupation covers entities that do not benefit from protection against discrimination under other provisions. The scope of its application is wide. The ECJ came to the conclusion that the provision which was the basis for the preliminary question cannot justify excluding the application of the protection against discrimination on grounds of sexual orientation granted by the directive, if such exclusion is necessary for the protection of the rights and freedoms of other persons, which is of significant importance for the practice of economic relations. The study also raises the important issue of self-employment and the lack of protection for individuals running a sole proprietorship against unilateral severance of economic relations and deprivation of their source of income.