Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Leger vs Ministre des Affaires sociales

Case Number: C-528/13

Facts of the case

On 29 April 2009, a doctor at the Établissement français du sang (French Blood Agency) in Metz (France) refused the blood donation offered by Mr. L on the ground that he had had sexual relations with another man.

The doctor based his decision on a French Decree of 12 January 2009 that establishes criteria for the selection of blood donors in France. As regards the risk of exposure of a prospective donor to a sexually transmissible infectious agent, the Decree provides a permanent contraindication to blood donation for men who have had sexual relations with other men.

Legal Questions

Does the fact that a man has sexual relations with another man . . . place him at a risk of acquiring severe infectous diseases that can be transmitted by blood? And can this justify a permanent contraindication to blood donations for men, who have sexual relations with other men?

Court Findings

The Court found the Charter to be applicable as the French decree applied Directive 2004/33 regarding requirements for blood and blood components.

The Court found that:

  1. Contraindication based on sexual orientation constituted a limitation of the right to non-discrimination under Article 21(1) of the Charter.
  2. Under Article 52(1) of the Charter, limitations are justifiable if there is a genuine objective of general interest recognised by the EU. This can, indeed, include the aim of minimising the high risk of transmitting an infectious disease to recipients of blood transfusions.

However, certain conditions need to be met:

  1. Having regard to the prevailing situation in the Member State, it needs to be established “on 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.”
  2. The proportionality requirement mentioned in Article 52(1) of the Charter would only be met if there were no effective techniques for detecting such infectious diseases or — in the absence of such techniques — if there were no methods less onerous than a contraindication that would ensure a high level of health protection for recipients.

The CJEU concluded that it was for the referring court to determine whether those conditions are met in France.