In September 2019, the Belgian Constitutional Court (‘BCC’) reviewed the constitutionality of a law setting up a 12-month blood donation deferral period for men who have sex with men (MSM). Like other European countries, Belgium converted a permanent ban on gay and bisexual male blood donors to the requirement of a temporary deferral period. This conversion took place in the wake of a European Court of Justice (‘ECJ’) judgement. In Léger, the ECJ established criteria determining the compatibility of such bans with the non-discrimination prohibition. Applying these, the BCC mostly left the deferral period in place.
Preliminary references are an important feature of EU law. While scholarly literature has focused on the role of judges in the process of judicial dialogue in the EU (more specifically, with regard to triggering Article 267 TFEU), that of lawyers and other non-state actors in the process has been overlooked. To date, little has been said about the motivations of these different actors who have triggered Article 267 TFEU. In this post, Angelina Atanasova draws attention to the context and the role of lawyers with regard to the preliminary reference procedure, based on a case study of Denmark.
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