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CJEU Case C-528/13 / Opinion

Geoffrey Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang

Policy area:
Public Health
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
17/07/2014

Key facts of the case:

Request for a preliminary ruling from the Tribunal administratif de Strasbourg (France)

‛Public health — Blood donation — Eligibility criteria for donors — Criteria for permanent or temporary deferral — Permanent deferral of men who have had sexual relations with another man — Principle of non-discrimination on grounds of sexual orientation — Proportionality’

Outcome of the case:

In light of all the foregoing considerations, I propose that the Court give the following answer to the question referred by the Tribunal administratif de Strasbourg:

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 mere fact that a man has had or currently has sexual relations with another man does not, in and of itself, constitute a sexual behaviour placing him at a high risk of acquiring severe infectious diseases which can be transmitted by blood.

It is for the referring court to ensure that, in permanently excluding men who have had, or have, sexual relations with another man from giving blood, the French Government has exercised the discretion which is traditionally afforded to Member States in the area of protecting public health in a manner which is consistent with the requirements of the principle of non-discrimination on grounds of sexual orientation and in particular of the principle of proportionality.

By ensuring that the permanent exclusion measure does not go beyond what is necessary to attain the legitimate objective of protecting the health of recipients, the referring court must, in particular, ensure, first, that the specific epidemiological situation in France, as presented to the Court, is based on reliable, representative and recent statistics and, secondly, that as scientific knowledge now stands, it is not possible, without subjecting the transfusion chain to excessive constraints, to provide quarantine measures for donations pending expiry of the window period. Finally, it is also for the referring court to examine possible reasons why an assessment of individual risk-taking, by means of a possibly revised questionnaire and an individual interview conducted by medical staff to identify whether the prospective donor’s sexual behaviour is what is known as ‘risk behaviour’, though it is possible for the rest of the population, would be unsuitable for adequately ensuring the protection of recipients in connection with donations from men who have had, or have, sexual relations with another man.