On 29 April 2015, the Court of Justice of the European Union released a judgement on Case C-528/13 Geoffrey Léger versus the French Ministry of Health and the French Blood Establishment.
The case started in 2009 when Mr Léger was turned down for blood donation, based on the fact that he had sexual relations with another men. At the time France had in place a permanent deferral for men who have sexual relations with other men (MSM): this defarral was lifted on 3 April 2015 by the French Parliament. Following this experience, Mr Léger decided to start a legal procedure against the French government and the French Blood Establishment. The administrative tribunal of Strasbourg, in charge of the case, asked for legal advice to the European Court of Justice (ECJ), which released its judgement in April.
The ECJ stated that the French Tribunal should first establish whether, based on the latest scientific, medical and epidemiological data, the MSM population in France is more at risk of contracting and transmitting infectious diseases such as HIV. The ECJ then explained that even if the MSM population is more at risk of transmitting infectious diseases, the French Tribunal needs to establish whether imposing a permanent deferral for the MSM population does not infringe the European principle of non-discrimination on the basis of sexual orientation. Finally, the ECJ stated that the French tribunal needs to establish if France has effective techniques to detect HIV so that recipients are ensured a high level of protection, however if these techniques do not exist in France, the French Tribunal will have to verify whether there are either less onerous techniques or whether the donor questionnaire coupled with the donor interview with a healthcare professional can identify high risk sexual behaviours accurately before resorting to permanent deferal for MSM donors.
Although the ruling seems to stress the importance of the transfusions’ recipients safety, it also gives a lot of weight to the European principle of non-discrimination on the basis of sexual orientation. The ECJ is asking to use permanent deferral based on sexual orientation as a last resort and only once all other blood safety safeguards such as blood testing, donor questionnaires and interviews with a healthcare professional cannot ensure a high level of human health protection. Furthermore, the ECJ judgement establishes that the MSM population should not be automatically deferred even if current epidemiological, scientific and medical data points to the MSM population being at a higher risk of contracting infectious diseases such as HIV. Deferral is seen as a last resort if all other safety safeguards cannot guarantee recipients’ safety.
Earlier in March, the European Haemophilia Consortium (EHC) published a position statement on blood donation and MSM. The document was circulated to all EHC national member organisations (NMOs) as well as to the parties taking part in the meeting of the National Competent Authorities for Blood and Blood Components. This is a meeting organised twice a year by the European Commission and bringing together national authorities responsible for Blood and Blood components.
The EHC will continue to monitor the application of the judgement in France.