Prohibition of Discrimination Based on Sexual Orientation: Analysis of CJEU and ECtHR Case Law Concerning Human Rights
Authors: Bator-Bryła Monika Patrycja 
Published: December 2024

This article analyses the importance of the prohibition of discrimination based on sexual orientation in light of the primary and secondary legislation of the European Union, as well as the case law of the Court of Justice of the European Union and the European Court of Human Rights. In the context of human rights protection, the prohibition of discrimination based on sexual orientation is a key element of modern judicial rulings in Europe. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) play crucial roles in shaping the standards for the protection of LGBT+ persons by interpreting legal provisions and issuing judgments that influence national legislation. Both institutions emphasize the importance of equal treatment within the framework of human rights, and their rulings contribute to the elimination of prejudice and discrimination. The analysis of the case law of the CJEU and ECtHR demonstrates how LGBT+ rights are integrated into the broader context of human rights protection, which in the long term may lead to changes in social norms and legislation in member states. The prohibition of discrimination, including on the grounds of sexual orientation, undoubtedly constitutes one of the main social and economic objectives of the European Union. This is reflected in the incorporation of this matter into EU primary law, secondary law, and CJEU jurisprudence. The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) identify equality as one of the Union’s values, mandate its promotion, and call for combating all forms of discrimination, prohibiting discrimination based on specified criteria. Furthermore, national measures can be examined in light of the treaty provisions only to the extent that they apply to situations not covered by the treaty’s specific anti-discrimination provisions. The author proposes the following theses: firstly, an analysis of CJEU case law reveals a noticeable dissonance between the application of national regulations by member states and EU law in the examined area, which significantly complicates the practical implementation of the prohibition of discrimination based on sexual orientation. Discrepancies mainly arise in national law due to improper drafting of national legal provisions or their erroneous interpretation by relevant national authorities. In particular, the author compares the regulations of member states with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. An analysis of the directive’s content, considering its interpretation by the CJEU, leads to the conclusion that member states implement the directive incorrectly, and the level of protection against discrimination based on sexual orientation is insufficient compared to the requirements of EU law. Member states are obliged to comply with EU law, which includes not only the duty of state authorities to respect directly applicable acts or implement them into national law but also the obligation to interpret and apply national law in accordance with the requirements of EU law. The second thesis results from the analysis of CJEU case law regarding the prohibition of discrimination based on sexual orientation. Although anti-discrimination directives form the foundation of the European Union’s anti-discrimination system, particularly in the areas of employment and occupation, the phenomenon of unequal treatment also occurs in other spheres such as access to goods and services or education. This necessitates the adoption of comprehensive legal measures to effectively combat discrimination. The study employs a comparative legal method, involving a comparative analysis of the legal acts of EU member states and the European Union regarding the prohibition of discrimination based on sexual orientation. The comparison of EU acts and national norms reveals the extent of the implementation of the provisions of EU law in this area within the legal systems of EU member states. The aim of this analysis is, among other things, to diagnose areas where these states have improperly implemented provisions of EU law or have incorrectly interpreted them. However, due to the limited amount of case law in this area, the author has limited the analysis to a few judgments. The second method applied is the analysis of the case law of the CJEU. CJEU rulings constitute a significant part of the study, compelling the author to use the comparative method to analyse judgments based on the same or similar legal grounds in analogous circumstances within the framework of the prohibition of discrimination based on sexual orientation.

The author presents the following theses: firstly, an analysis of CJEU case law reveals a noticeable dissonance between the application of national regulations by member states and EU law in the examined area, which significantly complicates the practical implementation of the prohibition of discrimination based on sexual orientation. Discrepancies mainly arise in national internal law due to improper drafting of national legal provisions or their erroneous interpretation by relevant national authorities. In particular, the author compares the regulations of member states with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. An analysis of the directive's content, considering its interpretation by the CJEU in limited rulings, leads to the conclusion that member states implement the directive inadequately, and the level of protection against discrimination based on sexual orientation is insufficient compared to the requirements of EU law. Member states are obliged to comply with EU law, which not only includes the duty of state authorities to respect directly applicable acts or implement them into national law but also the obligation to interpret and apply national law in accordance with EU law requirements[1]. The second thesis results from the analysis of CJEU case law regarding the prohibition of discrimination based on sexual orientation. Although anti-discrimination directives form the foundation of the European Union's anti-discrimination system, particularly in the areas of employment and occupation, the phenomenon of unequal treatment also occurs in other spheres such as access to goods and services or education. This necessitates the adoption of comprehensive legal solutions to effectively combat discrimination in a practical dimension.