Key facts of the case:
Request for a preliminary ruling under Article 267 TFEU from the Tribunal administrative, Strasbourg (France), made by decision of 1 October 2013, received at the Court on 8 October 2013, in the proceedings
Results (sanctions) and key consequences of the case:
The Court (Fourth Chamber) hereby rules:
Point 2.1 of Annex III to Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components must be interpreted as meaning that the criterion for permanent deferral from blood donation in that provision relating to sexual behaviour covers the situation in which a Member State, having regard to the prevailing situation there, provides for a permanent contraindication to blood donation for men who have had sexual relations with other men where it is established, on the basis of current medical, scientific and epidemiological knowledge and data, that such sexual behaviour puts those persons at a high risk of acquiring severe infectious diseases and that, with due regard to the principle of proportionality, there are no effective techniques for detecting those infectious diseases or, in the absence of such techniques, any less onerous methods than such a counter indication for ensuring a high level of health protection of the recipients. It is for the referring court to determine whether, in the Member State concerned, those conditions are met.
48. Accordingly, among the provisions of the Charter, that decree must respect inter alia Article 21(1) thereof, according to which any discrimination based on sexual orientation must be prohibited. Article 21(1) is a particular expression of the principle of equal treatment, which is a general principle of EU law enshrined in Article 20 of the Charter (see, to that effect, judgments in Römer, C‑147/08, EU:C:2011:286, paragraph 59, and Glatzel, C‑356/12, EU:C:2014:350, paragraph 43).
49. In that connection, taking as a criterion for a permanent contraindication to blood donation the fact of being a ‘man who has had sexual relations with another man’, Table B of Annex II to the Decree of 12 January 2009 determines the deferral from blood donation on the basis to the homosexuality of the male donors who, on account of the fact that they have had homosexual sexual relations, are treated less favourably than male heterosexual persons.
50. In those circumstances, the Decree of 12 January 2009 may discriminate against homosexuals on grounds of sexual orientation within the meaning of Article 21(1) of the Charter.
51. Therefore, it must be determined whether the permanent contraindication to blood donation provided for in the Decree of 12 January 2009 for a man who has had sexual relations with another man none the less satisfies the conditions laid down by Article 52(1) of the Charter in order to be justified.
52. That provision states that any limitation on the exercise of the rights and freedoms recognised by it must be provided for by law and respect the essence of those rights and freedoms. In addition, that article provides that, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
53. In the present case, it is common ground that the permanent contraindication to blood donation for a man who has had sexual relations with another man, which constitutes a limitation on the exercise of the rights and freedoms recognised by the Charter, must be regarded as being provided for by law, within the meaning of Article 52(1), since it stems from the Decree of 12 January 2009.
54. Furthermore, that limitation respects the essential contents of the principle of non-discrimination. That limitation does not call into question the principle as such, as it concerns only the question, which is limited in scope, of deferrals from blood donation in order to protect the health of the recipients.
55. However, it must still be determined whether that limitation meets an objective of general interest, within the meaning of Article 52(1) of the Charter, and, whether, in the affirmative, it respects the principle of proportionality within the meaning of that provision.
56. In that connection, it must be recalled that Directive 2004/33 implements Directive 2002/98. The latter directive, in accordance with its legal basis, namely Article 152(4)(a) EC, is intended to protect public health.
57. In the present case, the permanent deferral from blood donation aims to minimise the risk of transmitting an infectious disease to recipients. That deferral thereby contributes to the general objective of ensuring a high level of human health protection, which is an objective recognised by the EU in Article 152 EC, and in particular in Article 152(4)(a) and (5) EC, and Article 35, second sentence of the Charter, which requires a high level of human health protection to be ensured in the definition and implementation of all Union policies and activities.