Court of Justice of the European Union issues a preliminary ruling on the responsibility of employers in the case of homophobic or discriminatory statements.
On 3 March 2010, Accept, a non-governmental organisation whose aim is to promote and protect lesbian, gay, bi-sexual and transsexual rights lodged a complaint before the National Council for Combating Discrimination (NCCD) against Mr Becali and SC Fotbal Club Steaua București SA (‘FC Steaua’). Accept claimed that the principle of equal treatment was breached in recruitment matters. In an interview regarding the possible transfer of a professional footballer, Mr. Becali had stated essentially that he would never hire a homosexual player. Accept submitted that Mr. Becali directly discriminated on grounds of sexual orientation, breaching the principle of equal treatment in employment and violating the dignity of homosexuals. In reference to the other defendant before the NCCD, FC Steaua, Accept claimed that the club has at no time distanced itself from Mr Becali’s statements.
By its decision of 13 October 2010, the NCCD held, in particular, that since Mr Becali’s statements could not be considered as emanating from an employer or a person responsible for recruitment, those circumstances did not fall within the sphere of employment. However, the NCCD took the view that those statements constituted discrimination in the form of harassment and gave Mr Becali a warning, the only penalty possible in accordance with Article 13(1) of GD No 2/2001, since the NCCD’s decision was given more than six months after the date on which the relevant facts occurred. Accept brought an action against that decision before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), which referred questions for a preliminary ruling to the Court of Justice on the interpretation of the directive.
The Curtea de Apel Bucureşti referred four questions to the Court of Justice for a preliminary ruling to establish:
Whether the provisions of the Employment Framework Directive (2000/78/EC) apply where a shareholder of a football club who presents himself as, and is considered in the mass media as, playing the leading role (or “patron”) of that football club makes homophobic statement to the mass media?
To what extent may the abovementioned statements be regarded as “facts from which it may be presumed that there has been direct or indirect discrimination” within the meaning of Article 10(1) of Directive 2000/78 ... as regards the defendant [FC Steaua]?
To what extent would there be probatio diabolica if the burden of proof referred to in Article 10(1) of [Directive 2000/78] were to be reversed in this case and the defendant [FC Steaua] were required to demonstrate that there has been no breach of the principle of equal treatment and, in particular, that recruitment is unconnected with sexual orientation?
Does the fact that it is not possible to impose a fine in cases of discrimination after the expiry of the limitation period of six months from the date of the relevant fact, laid down in Article 13(1) of [GD No 2/200]1 on the legal regime for sanctions, conflict with Article 17 of [Directive 2000/78] given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive?
In reference to the first and second questions, the Court observed that the directive applies in circumstances such as those on which the dispute in the main proceedings is based, since they involve statements concerning the conditions for access to employment, including recruitment conditions. The Court also observed that a defendant employer cannot prevent the shift of the burden of proof by asserting that the statements indicative of a homophobic recruitment policy come from a person who, while claiming to play an important role in the management of that employer and appearing to do so, is not legally capable of binding it in recruitment matters. The fact that that employer might not have clearly distanced itself from those statements may be taken into account in the appraisal of its recruitment policy.
As far as the third question is concerned, the Court claimed that it is unnecessary for a defendant to prove that persons of a particular sexual orientation have been recruited in the past, since such a requirement would interfere with the right to privacy. A prima facie case of discrimination on grounds of sexual orientation may, however, be refuted with a body of consistent evidence without the defendant having to prove that persons with a specific sexual orientation have been recruited in the past. Such evidence may include, in particular, distancing itself from discriminatory public statements and the existence of express provisions in its recruitment policy aimed at ensuring compliance with the principle of equal treatment.
Finally, the Court noted that the directive precludes national rules by virtue of which, where there is a finding of discrimination on grounds of sexual orientation, it is only possible to give a ‘warning’ after the expiry of six months from the date on which the facts occurred, if that penalty is not effective, proportionate and dissuasive. It is however for the national court to ascertain whether such is the case and, if necessary, to interpret national law as far as possible in light of the wording and the purpose of that directive in order to achieve the result envisaged by it. It is noteworthy to mention that the Court underlined the importance of procedures in front of equality bodies by stating that the mere existence of an action for damages in front of the courts cannot, as such, make good any shortcomings in terms of effectiveness, proportionality or dissuasiveness of the sanction applied by the equality body. The National Council for Combating Discrimination welcomed the decision of the Court of Justice of the European Union (CJEU) and appreciated the clarification regarding the scope of Directive 2000/78/EC. The NCCD also calls attention to the fact that in 2013 the Romanian legislation has been amended and that consequently warning is not any more the only available sanction after the expiry of the six months limitation period.