Opinion of the Advocate General — ECLI:EU:C:2020:374
Date: 2020-05-14
Language of the case: Swedish
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights
Procedure: Reference for a preliminary ruling
Origin: Sweden

Translation C-30/19 - 1 
Case C-30/19 
Request for a preliminary ruling 
Date lodged:  
10 January 2019 
Referring court:  
Högsta domstolen (Sweden) 
Date of the decision to refer:  
20 December 2018 
Appellant:  
Diskrimineringsombudsmannen 
Opposing party:  
Braathens Regional Aviation AB 
      
MINUTES [OMISSIS] 
2018-12-18  [OMISSIS] 
[OMISSIS] 
PARTIES 
Appellant 
Diskrimineringsombudsmannen 
[OMISSIS] Solna 
[OMISSIS] [OR. 2] 
Opposing party 
Braathens Regional Aviation AB [OMISSIS] 
[OMISSIS] Malmö 
EN 
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[OMISSIS] 
MATTER 
Dismissal of appeal, inter alia. 
DECISION UNDER APPEAL 
Decision of Svea hovrätt (Svea Court of Appeal, Sweden) of 16 April 2018 
[OMISSIS] 
The Högsta domstolen (Supreme Court, Sweden), which gave the parties the 
opportunity of commenting on the provisionally formulated question, makes the 
following 
ORDER 
The Högsta domstolen (Supreme Court) decides to request a preliminary ruling 
from the Court of Justice of the European Union in accordance with Annex A to 
these minutes. 
[OR. 3] The Högsta domstolen (Supreme Court) orders the action to be stayed 
pending the preliminary ruling from the Court of Justice of the European Union. 
[OMISSIS] [OR. 4] 
ANNEX A TO    
MINUTES    
2018-12-18  [OMISSIS] 
REQUEST FOR A PRELIMINARY RULING 
Facts of the case 
1. PAG was born in Chile and lives in Stockholm. In July 2015, he was booked on a 
flight between Landvetter and Stockholm with the airline which is now Braathens 
Regional Aviation AB (BRA). After the aircraft had taxied out to take-off, the 
captain decided that PAG and another passenger should undergo an additional 
security check before the aircraft could depart. That check was also carried out. 
The captain then took the decision to have PAG and the other passenger removed 
from the aircraft. The aircraft taxied out and took off without PAG. 
BRAATHENS REGIONAL AVIATION 
 
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The case before the tingsrätten (District Court) 
2. The Diskrimineringsombudsmannen (Equality Ombudsman; ‘DO’) brought 
proceedings against BRA and claimed that the company should pay compensation 
for discrimination of SEK 10 000 to PAG. The basis of the claim was that BRA 
directly discriminated against PAG in breach of Chapter 2, Paragraph 12, in 
conjunction with Chapter 1, Paragraph 4, of the diskrimineringslagen (2008:567) 
(Law on discrimination (2008: 567); ‘the DL’) in that BRA linked him with an 
Arabic/Muslim passenger whom he did not know and that as a result PAG was 
required to undergo an additional security check, which caused him discomfort. 
By so doing, BRA, for reasons connected with PAG’s appearance and ethnicity, 
placed him at a disadvantage by treating him less favourably than other passengers 
are treated or would have been treated in a comparable situation. [OR. 5] 
3. BRA agreed to pay 10 000 SEK to PAG. BRA did not accept that any 
discrimination occurred. 
4. The DO objected to the tingsrätten (District Court) delivering judgment on the 
basis of BRA’s admission without examining the substance of the alleged 
discrimination. In the event that the tingsrätten (District Court) should not 
examine the substance of the case within the framework of the claim for 
performance, the  DO claimed that the tingsrätten should, principally, declare that 
BRA itself is liable to pay compensation to PAG for discrimination.  The 
compensation would reflect the harm to which PAG was subjected in that BRA, 
for reasons connected with his appearance, linked him to an Arabic/Muslim 
passenger whom he did not know and forced him to undergo an additional 
security check. In the alternative, the DO claimed that the tingsrätten (District 
Court) should declare that BRA subjected PAG to discrimination. The DO also 
claimed that the court should request a preliminary ruling from the Court of 
Justice, in so far as now relevant, concerning whether it is consistent with EU law 
that a court may order payment of compensation without finding that an 
infringement has occurred. The DO refers, in both pleas in law, to Chapter 2, 
Paragraph 12, in conjunction with Chapter 1, Paragraph 4, of the DL. 
5. BRA argued that the DO’s claims for a declaration were inadmissible and opposed 
seeking a preliminary ruling. 
6. The tingsrätten (District Court) ordered BRA to pay SEK 10 000 and certain 
interest to PAG (paragraph 1 of the judgment of the tingsrätten) and to pay the 
DO’s costs of the proceedings (paragraph 2). In the grounds of the judgment, the 
tingsrätten (District Court) stated, inter alia, that rulings in non-mandatory cases 
are to be given without any examination of the substantive question, if the 
applicant’s claim has been admitted. The court further stated that it is bound by an 
admission made by a party in the context of legal proceedings, irrespective of the 
reasons given for it, something which is in line with the fact that a party, even 
outside [OR. 6] the scope of proceedings, may adopt measures binding in civil 
law, independent of whether there are any requirements in law. The tingsrätten 
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(District Court) also dismissed the DO’s claims for declarations (paragraph 3) and 
refused the DO’s request that a reference for a preliminary ruling be made 
(paragraph 4). 
The case before the hovrätten (Court of Appeal) 
7. The DO claimed that the hovrätten (Court of Appeal) should obtain a preliminary 
ruling, overturn the judgment of the tingsrätten (District Court), set aside the 
decision of the tingsrätten on the inadmissibility of the DO’s claims for 
declarations and remit the case to the tingsrätten for the proceedings to be 
continued. BRA contended that the DO’s appeal, in so far as it relates to 
paragraphs 1 or 2 of the judgment of the tingsrätten (District Court), should be 
dismissed and, otherwise and in addition, opposed any alteration to the judgment 
of the tingsrätten. 
8. The hovrätten (Court of Appeal) has dismissed the DO’s appeal so far as 
paragraphs 1 and 2 of the judgment of the tingsrätten (District Court) is 
concerned. The hovrätten (Court of Appeal) took the view that the judgment of the 
tingsrätten (District Court) was correct under Swedish procedural law and that the 
defendant’s admission of the claimant’s claim means that the defendant’s position 
as regards the circumstances relied on by the applicant is irrelevant in such a case. 
Furthermore, the hovrätten (Court of Appeal) dismissed the DO’s appeal as 
regards paragraph 3 of the judgment of the tingsrätten (District Court) and refused 
the request for a preliminary ruling. 
The case before the Högsta domstolen (Supreme Court) 
9. The DO claims that the Högsta domstolen (Supreme Court) should obtain a 
preliminary ruling from the Court of Justice, overturn the decision of the hovrätten 
(Court of Appeal) to dismiss the DO’s appeal in so far as it relates to paragraphs 1 
and 2 of the judgment of the tingsrätten (District Court), overturn the decision of 
the hovrätten to dismiss the appeal in so far as it relates to paragraph 3 of the 
judgment of the tingsrätten, set aside the judgment of the tingsrätten and remit the 
case to the tingsrätten for examination of the substance of any of the DO’s claims 
for a declaration together with the claim for performance and compensation in 
respect of discrimination. [OR. 7] 
10. BRA has opposed the DO’s claims. 
The legislative framework and the need for a preliminary ruling 
Diskrimineringslagen (the Law on discrimination) 
11. The purpose of the diskrimineringslagen (Law on discrimination; ‘DL’) is to 
combat discrimination and to promote equal rights and opportunities regardless of 
BRAATHENS REGIONAL AVIATION 
 
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sex, transgender identity or expression, ethnicity, religion or belief, disability, 
sexual orientation or age by other means. The law covers many different spheres 
of activity and applies to both public and private activities. The law has been 
drafted having regard to the various prohibitions of discrimination in UN and 
Council of Europe Conventions and to various EU instruments, including Council 
Directive 2000/43/EC implementing the principle of equal treatment between 
persons irrespective of racial or ethnic origin. The law is mandatory. Contracts 
which restrict a person’s rights or obligations under the law are therefore without 
effect in that regard (Chapter 1, Paragraph 3). 
12. Discrimination is deemed to include, inter alia, that a person is prejudiced if he is 
treated less favourably than another person is, has been or would be treated in a 
comparable situation, if the prejudice is connected to the person’s sex, transgender 
identity or expression, ethnicity, religion or belief, disability, sexual orientation or 
age (cf. Chapter 1, Paragraph 4, subparagraph 1, of the DL). Discrimination is 
prohibited, inter alia, on the part of a person who, outside his private and family 
life, supplies goods, services or housing to the general public (cf. Chapter 2, 
Paragraph 12). 
13. The considerations taken into account in the choice of the penalty system are 
apparent from the travaux préparatoires of the law. They state, inter alia, that the 
new DL should [OR. 8] create the conditions for robust and dissuasive penalties 
for discrimination, that the choice of penalties should be made on the basis of that 
position, that the penalty for infringement of the new DL should, together with 
invalidity and alteration of a contract, be economic compensation and that the 
damage should be given a dual function, so that it both gives compensation to the 
person harmed and acts as a deterrent to infringements. [OMISSIS] 
14. The penalties which can be enforced against anyone discriminating against others 
are, in accordance with the law, compensation (referred to as compensation for 
discrimination) and alteration and invalidity of, inter alia, contracts and other legal 
transactions (see Chapter 5 of the DL). Any person who infringes the prohibition 
in Chapter 2, Paragraph 12, must pay compensation for discrimination in respect 
of the harm resulting from the infringement. Compensation for discrimination 
shall in each individual case be determined so that it constitutes reasonable 
compensation for the affected person — on the basis of the gravity of the 
infringement — and, in addition, contributes effectively to preventing the 
occurrence of discrimination in society. Compensation is therefore to be based on 
both an amount which will provide redress and an amount intended to promote 
prevention. [OMISSIS] 
15. Cases concerning the application of, inter alia, Chapter 2, Paragraph 12, of the DL 
must be examined by a general court and dealt with in accordance with the 
provisions of the rättegångsbalken (Swedish Code of Judicial Procedure) 
concerning civil proceedings where out-of-court settlement is permitted (Chapter 
6, Paragraph 1, second subparagraph of the DL). 
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Procedural law principles concerning admission and actions for a declaration 
16. The claimant may, on the conditions set out in Chapter 13, Paragraph 1, of the 
Code of Judicial Procedure, claim that the defendant should be ordered to perform 
something, e.g. to pay a sum of money. In the preliminaries of a dispute, the 
defendant must [OR. 9] enter a defence as soon as possible. A defendant may, as 
an alternative, opt to admit the applicant’s claim (see Chapter 42, Paragraph 7). 
The defendant may have various reasons for the admission. He or she is not 
required to give the reasons behind the position he or she has adopted, but may 
merely submit a simple admission. The admission is therefore deemed to be 
almost a declaration intended to have the practical effect of ending the 
proceedings without further examination. Admissions to the claimant’s claim may 
be given on particular grounds or without relation to the grounds of the claim. 
[OMISSIS] 
17. The starting point for a case in which settlement is permitted (non-mandatory civil 
dispute), is that the court, without any real appreciation of the facts or legal 
questions, is to deliver judgment on the basis of the claim which has been 
admitted (see Chapter 42, Paragraph 18 of the Code of Judicial Procedure). The 
admission means that no review will be carried out of the question whether the 
claimant has the civil-law right against the defendant relied on in the claim and the 
plea in law raised. The admission is binding on the court in that it alone forms the 
basis of the judgment which upholds the claim. There is a judgment on a formal 
basis where the award is based on the admission but without the court making any 
statement concerning the accuracy of the facts relied on by the claimant. It is not, 
therefore, possible to draw any conclusion with any degree of certainty from a 
judgment based on an admission of the claim that facts relied on by the claimant 
are accurate. [OMISSIS] 
18. Actions for a declaration are governed by Chapter 13, Paragraph 2, of the Code of 
Judicial Procedure. It follows from the first subparagraph of the provision, which 
is relevant to the present situation, [OR. 10] that actions for a declaration of 
whether or not a particular legal relationship exists may be examined if there is 
uncertainty as to the legal relationship and that leads to any prejudice being 
caused to the claimant. 
19. The requirement that there must be a legal relationship means that there must be a 
concrete legal relationship (or no relationship) between the parties and that the 
action must not concern the meaning of the relevant law or purely factual 
relationships. The requirement also means that the action must involve at least one 
legal consequence and that the claim for a particular legal consequence must have 
a sufficiently clear link to concrete circumstances relied upon as the grounds. The 
legal relationship forming the subject-matter of the action must therefore be so 
stated that the effect of its being declared or not to exist can be determined. 
[OMISSIS] As regards the requirement that the uncertainty must lead to prejudice 
being caused to the claimant, the uncertainty must make it more difficult for the 
BRAATHENS REGIONAL AVIATION 
 
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claimant to plan its economic activity or otherwise create an inconvenient lack of 
security. 
20. The provision in Chapter 13, Paragraph 2, of the Code of Judicial Procedure is 
optional. There is a requirement that an action for a declaration must, having 
regard to the circumstances, appear to be suitable in order for it to be examined. 
When assessing the suitability, the court is to weigh, on the one hand, the 
claimant’s interest in bringing an action against, on the other, the disadvantages 
which an action for a declaration may entail for the defendant. The likelihood that 
a ruling in the action for a declaration will be followed by additional proceedings 
is relevant. Also relevant are the interests of the defendant in being able to put 
forward an adequate defence. In any event, the extent to which the action brought 
is capable of eliminating the uncertainty and the disadvantage resulting from it 
must be taken into account. [OMISSIS] [OR. 11] 
Seeking a preliminary ruling from the Court of Justice 
21. As follows from the above, the tingsrätten (District Court) and the hovrätten 
(Court of Appeal) found that an admission in an action for performance 
concerning compensation for discrimination must result in a judgment, where the 
defendant is ordered to pay to the claimant the amount claimed and admitted, and 
that no examination is made of whether there has been discrimination. Where 
there is admission of the claimant's claim, in the view of the courts the alleged 
infringement cannot be examined either in connection with an application for a 
declaration. 
22. Article 15 of Council Directive 2000/43/EC requires that there be effective, 
proportionate and dissuasive penalties for infringements of the national provisions 
adopted to implement the directive. The legislation has been implemented in 
Swedish law so that the DL provides for compensation, alteration and invalidity of 
a contract as sanctions. 
23. As the case is before the Högsta domstolen (Supreme Court) for a ruling, the 
question therefore arises as to the scope of EU law, that is to say, what is the 
requirement for penalties under Article 15 of the directive, in the light of the 
obligation on the Member States to provide an effective remedy before a national 
court for examination of infringements of individuals’ rights and freedoms 
protected under EU law (see Article 47 of the Charter of Fundamental Rights of 
the European Union). The question is whether a court, in an action for 
compensation — where the defendant has admitted the claim and must therefore 
pay the claimed amount — must, on application by the person who considers 
himself to have been wronged, be able to examine whether there was 
discrimination, in that case as part of the legal protection against discrimination. 
The question then arises whether the answer depends on whether the person 
accused of discrimination has or has not acknowledged that discrimination has 
occurred. [OR. 12] 
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Question 
24. In a case concerning an infringement of a prohibition laid down in Directive 
2000/43/EC where the person wronged claims compensation for discrimination, 
must a Member State, if so requested by the person wronged, always examine 
whether discrimination has occurred — and where appropriate conclude that that 
was the case — regardless of whether the person accused of discrimination has or 
has not admitted that discrimination has occurred, in order for the requirement in 
Article 15 for effective, proportionate and dissuasive sanctions to be regarded as 
satisfied?