# C_2012126EN.01000602.xml

| 28.4.2012 | EN | Official Journal of the European Union | C 126/6 |
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28.4.2012

EN

Official Journal of the European Union

C 126/6

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Reference for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 14 February 2012 — Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării

(Case C-81/12)

2012/C 126/12

Language of the case: Romanian

Referring court

Referring court

Curtea de Apel București

Parties to the main proceedings

Parties to the main proceedings

Applicant: Asociația ACCEPT

Applicant:

Defendant: Consiliul Național pentru Combaterea Discriminării

Defendant:

Questions referred

Questions referred

| 1. | Do the provisions of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) apply when a shareholder of a football club who presents himself as, and is considered in the mass media as, the principal director (or ‘manager’) of that football club makes a statement to the mass media in the following terms:
  ‘Not even if I had to close Steaua down would I accept a homosexual on the team. Obviously people will talk, but how could anyone write something like that if it’s not true and, what’s more, put it on the front page... Perhaps he’s not a homosexual [X, a Bulgarian footballer] ... But what if he is? ... I said to an uncle of mine who didn’t believe in Satan or in Christ. I said to him: “Let’s say God doesn’t exist. But suppose he does? What do you lose by taking communion? Wouldn’t it be good to go to Heaven?” He said I was right. A month before he died he took communion. May God forgive him. There’s no room for gays in my family, and Steaua is my family. It would be better to play with a junior rather than someone who was gay. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose.
  Not even if I had to close Steaua down would I accept a homosexual on the team. ... Perhaps he’s not a homosexual, but what if he is? There’s no room for gays in my family, and Steaua is my family. Rather than having a homosexual on the team, it would be better to play a junior. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Even if God told me in a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him! Too much has been written in the papers about his being a homosexual. Even if ȚSKA gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drunk ... but if he’s a homosexual I don’t want to know about him’? |
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1.

Do the provisions of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) apply when a shareholder of a football club who presents himself as, and is considered in the mass media as, the principal director (or ‘manager’) of that football club makes a statement to the mass media in the following terms:

1

‘Not even if I had to close Steaua down would I accept a homosexual on the team. Obviously people will talk, but how could anyone write something like that if it’s not true and, what’s more, put it on the front page... Perhaps he’s not a homosexual [X, a Bulgarian footballer] ... But what if he is? ... I said to an uncle of mine who didn’t believe in Satan or in Christ. I said to him: “Let’s say God doesn’t exist. But suppose he does? What do you lose by taking communion? Wouldn’t it be good to go to Heaven?” He said I was right. A month before he died he took communion. May God forgive him. There’s no room for gays in my family, and Steaua is my family. It would be better to play with a junior rather than someone who was gay. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose.

Not even if I had to close Steaua down would I accept a homosexual on the team. ... Perhaps he’s not a homosexual, but what if he is? There’s no room for gays in my family, and Steaua is my family. Rather than having a homosexual on the team, it would be better to play a junior. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Even if God told me in a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him! Too much has been written in the papers about his being a homosexual. Even if ȚSKA gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drunk ... but if he’s a homosexual I don’t want to know about him’?

| 2. | 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 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, as regards the defendant S.C. Fotbal Club Steaua București S.A.? |
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2.

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 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, as regards the defendant S.C. Fotbal Club Steaua București S.A.?

| 3. | To what extent would there be probatio diabolica if the burden of proof referred to in Article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation were to be reversed in this case and the defendant S.C. Fotbal Club Steaua București S.A. 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? |
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3.

To what extent would there be probatio diabolica if the burden of proof referred to in Article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation were to be reversed in this case and the defendant S.C. Fotbal Club Steaua București S.A. 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?

probatio diabolica

| 4. | 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 Government Decree No 2/2001 on the legal regime for sanctions, conflict with Article 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive? |
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4.

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 Government Decree No 2/2001 on the legal regime for sanctions, conflict with Article 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive?

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(1)  OJ 2000 L 303, p. 16.

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