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.
45) Although Recommendation R(95)14 pointed out the importance of establishing appropriate donor selection avoiding any possibility of discrimination, Resolution CM/Res(2013)3, cited above, acknowledged that the MSM population, that is to say a whole category of the population, was excluded, because it had not been possible to narrow down the available statistical data based on individual risk taking. The statistics specifically and regularly contrast the MSM population with the heterosexual population: in fact, the expression MSM has, in the minds of ordinary as well as scientific people, become synonymous with ‘homosexual’ or ‘bisexual’. ( 52 ) The male homosexual and bisexual community is excluded from giving blood and definitively so: it is therefore subject to discrimination. However, the EU seeks to combat discrimination based on sex and sexual orientation, as evidenced by both the former Article 13 EC and the current Article 19 TFEU and Article 21 of the Charter. ( 53 )
47) The Court has repeatedly held that ‘the health and life of humans rank foremost among the assets and interests protected by the EC Treaty’. ( 54 ) Since the ministerial decree resulting in the total and permanent exclusion of the MSM population from giving blood is a more stringent protection measure within the meaning of Article 4(2) of Directive 2002/98, it is indisputable that it pursues a legitimate objective, that of minimising the risks of contamination for recipients and thus of contributing to the overall objective of ensuring a high level of protection of public health, now recalled in both Article 168(1) TFEU and Article 35 of the Charter.