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Sexual behaviour used by the EU legislature requires a specific behaviour or attitude that places the prospective donor at a high risk of contamination to be identified (in line with the authoritative interpretation of the Court’s top advisor, Advocate General Mengozzi, C-528/13, para 35) 4.ĮU quality regulation on blood and blood productsĪs a general rule, the organisation and delivery of health services and medical care belong to the sovereign powers of the member states, meaning that the EU has limited regulatory powers in the health area. This is however, too broad and too general. It nevertheless raised a kind of irrebuttable presumption that an MSM relationship necessarily and systematically puts a person at high risk of contamination. Ultimately, the Court was being asked to explain whether the selected French rule is legitimately justified, and secondly, whether it is appropriate and necessary in order to ensure a high level of public health protection, meaning that in the case of several appropriate measures, member states should select the least onerous, and the disadvantages caused must be proportionate to the aims pursued (Article 52) of the Charter).įor reasons of clarification, the Court highlighted that the concept of “sexual behaviour” should not be understood as synonymous with “sexual orientation”. Although it might be objected that any mechanism of selection is inherently discriminatory, it is important to ensure that differences in treatment are properly justified and proportionate, i.e. In that connection, it was argued that on the basis of their homosexuality, donors who are men having sex with men (MSM) are treated less favourably than male heterosexual persons. On the other hand, the EU Charter on Human Rights prohibits any discrimination against homosexuals on grounds of sexual orientation (Article 21 of the Charter) expressing the equal treatment principle. Although it is obvious that the rejection of a gesture of selfless generosity and solidarity may cause misunderstanding, still, giving blood is not recognised as a right in itself. For instance, there does not exist “a right to donate blood”. First of all, the Court explained the applicable legal norms. In this case the European Court clarified existing European rules on blood donation, at least to a certain extent. Non-discrimination and legitimate restrictions The Court of Justice’s reply is not merely an opinion, but a judgment that binds the French court and likewise other national courts before which the same problem is raised. The French court decided to refer the case to the EU Court of Justice for what is called a “preliminary ruling” to clarify a point of the interpretation of EU law, more specifically the level of risk justifying the permanent deferral from blood donation. Furthermore, the decision violated his basic human rights (private life, equality and non-discrimination). started a legal procedure for annulment of that decision, arguing that this national rule was incompatible with the Blood Directive, as it does not distinguish between permanent and temporal deferral from blood donation for which the applicable criteria must be different. The doctor based his decision on national law, stipulating that “the exposure of a prospective donor to a sexually transmittable infectious agent, is a permanent contraindication to blood donation for a man who has had sexual relations with another man”. The physician in charge refused the blood donation on the ground that L. attended the French Blood Agency in Metz to donate blood. Secondly, the Author addresses the relevance to other EU member states. This short report explains the Court’s reasoning, reviewing the conformity of member states’ legislation on blood donation with EU law. Despite the member states’ exclusive competences, the EU has some limited role in terms of blood donation by setting standards of quality and safety of human blood and blood components, as established by the so-called Blood Donation Directive 2, 3. Secondly, as the Court was requested to rule on an issue that concerns the exclusive competence of individual member states: the organisation and delivery of health services and medical care.
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The issue was delicate since such a ban categorically excludes a category of citizens from donating blood, which might be contrary to fundamental human rights such as the equal treatment and non-discrimination principle, recognised by EU law.
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On 29 April, 2015, the European Union (EU) Court of Justice in Luxembourg had to rule a delicate issue: to decide on a French bylaw, banning homosexuals from eligibility to donate blood on a permanent basis as their sexual behaviour may cause a high risk of acquiring severe infectious diseases, transmitted by blood 1.