Opinion of the Advocate General — ECLI:EU:C:2019:922
Date: 2019-10-31
Language of the case: Italian
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-507/18 — 1 
Case C-507/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 August 2018 
Referring court: 
Corte suprema di cassazione (Italy) 
Date of the decision to refer: 
30 May 2018 
Appellant: 
NH 
Respondent: 
Associazione Avvocatura per i diritti LGBTI — Rete Lenford 
  
Subject matter of the main proceedings 
Appeal [in cassation] against the judgment on appeal (which upholds the first 
instance judgment against the appellant) and request for a reference to be made to 
the Court of Justice of the European Union for a preliminary ruling, as a condition 
for the admissibility of the question of constitutionality which the referring court 
wishes to raise with the Corte costituzionale (Constitutional Court). 
Subject matter and legal basis of the reference 
The exact interpretation of the rules laid down in Directive 2000/78/EC in respect 
of (a) the standing of an association of lawyers and (b) the applicability of anti-
discrimination rules in the field of employment to the principle of freedom of 
thought. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-507/18 
 
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Questions referred 
1. Must Article 9 of Directive 2000/78/EC be interpreted as meaning that an 
association composed of lawyers specialised in the judicial protection of 
LGBTI persons, the statutes of which state that its objective is to promote 
LGBTI culture and respect for the rights of LGBTI persons, automatically, 
as a legal person having a collective interest and as a non-profit association, 
has standing to bring proceedings, including in respect of a claim for 
damages, in circumstances of alleged discrimination against LGBTI 
persons? 
2. On a proper construction of Articles 2 and 3 of Directive 2000/78/EC, does a 
statement expressing a negative opinion with regard to homosexuals, 
whereby, in an interview given during a radio entertainment programme, the 
interviewee stated that he would never appoint an LGBTI person to his law 
firm nor wish to use the services of such persons, fall within the scope of the 
anti-discrimination rules laid down in that directive, even if that statement 
does not relate to any current or planned recruitment procedure by the 
interviewee? 
Provisions of EU law relied on 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation, in particular 
Articles 1, 2, 3, 9 and 17 and Recital 29. 
Commission Recommendation of 11 June 2013 on common principles for 
injunctive and compensatory collective redress mechanisms in the Member States 
concerning violations of rights granted under Union Law (2013/396/EU). 
Case-law of the Court of Justice relied on 
Judgment of 10 July 2018, C-54/07, Centrum voor gelijkheid van kansen en voor 
racismebestrijding v Firma Feryn NV, in particular paragraph 18 
Judgment of 25 April 2013, C-81/12, Asociaţia Accept v Consiliul Naţional 
pentru Combaterea Discriminării, in particular paragraphs 2, 25, 27, 31 and 49 
Judgment of 14 March 2017, C-157/15, Samira Achbita and Centrum voor 
gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, in 
particular paragraphs 37 and 38 
Opinion of Advocate General Poiares Maduro of 12 March 2008 in Case C-54/07, 
Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn 
NV, in particular points 2 and 16 
ASSOCIAZIONE AVVOCATURA PER I DIRITTI LGBTI 
 
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Provisions of national law relied on 
Decreto legislativo 9 luglio 2003, n. 216, Attuazione della direttiva 2000/78/CE 
per la parità di trattamento in materia di occupazione e di condizioni di lavoro 
(Legislative Decree No 216 of 9 July 2003 implementing Directive 2000/78/EC 
for equal treatment in employment and occupation (‘Legislative Decree 
No 216/2003’)), in particular:  
Article 1 — Subject matter 
‘This Decree lays down the provisions relating to the implementation of equal 
treatment between persons irrespective of religion or belief, disability, age, or 
sexual orientation, as regards employment and occupation, establishing the 
necessary measures to ensure that there is no discrimination on those grounds, 
taking account also of the different consequences that those forms of 
discrimination may have for women and men.’ 
Article 2 — Concept of discrimination 
‘1. For the purposes of this Decree [...], the “principle of equal treatment” shall 
mean that there shall be no direct or indirect discrimination whatsoever on the 
grounds of religion, belief, disability, age or sexual orientation. This principle 
means that direct or indirect discrimination, as defined below, shall be prohibited: 
(a) direct discrimination [shall be taken to occur where] one person is treated 
less favourably than another is, has been or would be treated in a comparable 
situation, on the grounds of religion, belief, disability, age or sexual orientation; 
(b) indirect discrimination [shall be taken to occur where] an apparently neutral 
provision, criterion, practice, act, pact or behaviour would put persons having a 
particular religion or belief, disabled persons or persons of a certain age or sexual 
orientation at a particular disadvantage compared with other persons. 
...’. 
Article 3 — Scope 
‘1. The principle of equal treatment without distinction on grounds of religion, 
belief, disability, age or sexual orientation shall apply to all persons as regards 
both the public and private sectors and shall be entitled to judicial protection, in 
accordance with the formal requirements laid down by Article 4, with specific 
reference to the following areas: 
(a) access to employment, to self-employment or to occupation, including 
selection criteria and recruitment conditions; 
(b) employment and working conditions, including career progression, pay and 
dismissals; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-507/18 
 
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(c) access to all types and to all levels of vocational guidance, vocational 
training, advanced vocational training and retraining, including practical work 
experience; 
(d) membership of, and involvement in, organisations representing workers or 
employers, or other professional organisations, including the benefits provided for 
by such organisations. 
...’. 
Article 5 — Standing 
‘1. Trade unions, associations and organisations representing the rights or interests 
affected under a mandate given by a public or certified private instrument, failing 
which the mandate shall be void, shall have standing to bring proceedings under 
Article 4 in the name and on behalf of, or in support of, the person subject to the 
discrimination, against the natural or legal person responsible for the 
discriminatory behaviour or act. 
2. The persons referred to in paragraph 1 shall also have standing in cases of 
collective discrimination where it is not automatically and immediately possible to 
identify individuals affected by the discrimination.’ 
Succinct presentation of the facts and the procedure in the main proceedings 
1 The appellant, during a radio interview, claimed that he did not wish to appoint a 
homosexual person to his law firm or use the services of homosexual persons in 
that context. As a result, on 6 August 2014 he was found to have acted illegally by 
order of the Tribunale di Bergamo (District Court, Bergamo, Italy), acting as an 
employment tribunal. In that order it was held that the appellant’s behaviour was 
unlawful, by reason of its discriminatory nature, and the appellant was ordered to 
pay damages in the sum of EUR 10 000 and was also ordered to publish a section 
of the order in a national daily newspaper. 
2 The appellant brought an appeal against that order before the Corte d’appello di 
Brescia (Court of Appeal, Brescia, Italy), which dismissed that appeal by 
judgment of 23 January 2015. 
3 The appellant has brought an appeal in cassation against that judgment. 
Main arguments of the parties in the main proceedings 
4 The appellant has brought the present appeal in cassation on the basis of nine 
grounds; however, of those grounds, only those set out below are relevant for the 
purposes of the Court of Justice’s ruling. 
ASSOCIAZIONE AVVOCATURA PER I DIRITTI LGBTI 
 
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5 The second ground, alleging misapplication of Article 5 of Legislative Decree 
No 216/2003, in that the appellant contests that the association has standing to 
bring proceedings. Since that association is exclusively composed of lawyers and 
trainee lawyers and is specialised in the judicial defence of the rights of LGBTI 
persons, but is not directly composed of LGBTI persons, it cannot claim that it has 
collective interests or that it is a body representing those interests. 
6 The fifth ground, alleging infringement or misapplication of Articles 2(1)(a) and 3 
of Legislative Decree No 216/2003, in that the appellant did not describe himself 
as an employer but, on the contrary, as a mere private citizen simply expressing an 
opinion. The appellant claims that his statements were made in the light-hearted 
context of a radio programme and did not amount to a public expression of a 
recruitment policy. Were the appellant to be penalised for making such 
statements, his right to express his own thoughts freely, as guaranteed by 
Article 21 of the Italian Constitution, would be infringed. The appeal court should 
have therefore made a reference to the Court of Justice for a preliminary ruling 
but, instead, it took no action. 
7 The sixth ground, whereby the appellant asks whether Article 2(1)(a) and (b) and 
Article 3 of Legislative Decree No 216/2003 are compatible with Article 21 of the 
Italian Constitution and requests the national court to make a reference to the 
Court of Justice for a preliminary ruling in order to enable the Corte costituzionale 
(Constitutional Court) to monitor compliance with the ‘controlimiti’ (counter-
limits) (that is, to check for points of conflict with the overriding principles of 
Italian law). 
Succinct presentation of the reasons for the reference 
8 The referring court begins by analysing the appellant’s ground relating to the 
standing of an association of lawyers. More specifically, that court questions 
whether an association of lawyers, which offers judicial protection to LGBTI 
persons, is a body representing collective interests for the purposes of Article 9(2) 
of Directive 2000/78 because its statutes also include the objective of 
disseminating LGBTI culture. 
9 Under Directive 2000/78, and also national legislation, not all associations may 
act on behalf of others or have their own legal standing. Standing is reserved only 
for those associations which have been given a representative power by the 
rightholder himself or which have ‘a legitimate interest in ensuring that the 
provisions of [the] Directive are complied with’ or, in the words of the national 
legislation, represent ‘the right or interest affected’. 
10 In a situation where the discrimination has been directed towards an entire 
category of persons included in the group which the legislation aims to protect and 
it is not possible to identify a specific injured party, Article 5(2) of Legislative 
Decree No 216/2003 allows an association to bring legal proceedings on behalf of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-507/18 
 
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an unspecified category of persons, based on the presumption that an interest in 
anti-discrimination is a collective interest. 
11 In the field of anti-discrimination, unlike in other fields, the Italian legislature has 
not specified or provided criteria to identify clearly the associations representing 
such interests. 
12 A private association may act as a body representing collective interests (for the 
purposes of Article 9 of Directive 2000/78) and act as a legal person having a 
direct collective interest if it is a qualified interest. That association may invoke 
that interest where it is impossible to identify the individual or individuals subject 
to the discrimination and where that association represents that collective interest 
(see Article 5(2) of Legislative Decree No 216/2003). Those requirements are to 
be verified on a case-by-case basis. 
13 As regards the association in the present dispute, it must first be ascertained 
whether the discrimination resulting from the appellant’s statements, in so far as 
they infringe the principle of equal treatment in employment, has harmed an 
unspecified category of persons. Second, it is necessary to examine whether, in 
the light of its statutes, the association has a collective interest of its own, the 
protection of which constitutes the institutional purpose of that association. 
14 Furthermore, pursuant to the Recommendation of the European Commission of 
11 June 2013 (2013/396/EU), the association must be entirely not-for-profit. 
15 The appeal court, taking account also of the fact that the statutes of the association 
state that it aims ‘to contribute to the development and dissemination of the 
culture and respect for the rights of [LGBTI] persons’, found that the association 
has standing to bring proceedings relating to protection from discrimination in the 
field of employment in relation to its own direct interest and to obtain damages in 
its own right. 
16 However, the referring court questions that finding since the case concerns an 
association of lawyers and the statutes of that association focus on the aim of 
providing legal assistance. 
17 The referring court then analyses the appellant’s ground concerning the 
applicability of anti-discrimination legislation in the field of employment to the 
principle of freedom of thought. 
18 That court notes that both the EU legislation and the Italian implementing 
legislation concern the creation, carrying on or conclusion of an employment 
relationship and focus on achieving equal treatment in employment from the start 
of that relationship, with a view to ensuring an increase in the rate of employment 
and, consequently, improved living conditions. 
19 Anti-discrimination rules seem completely unrelated to the principle of freedom of 
thought and they do not appear to seek to limit that principle. 
ASSOCIAZIONE AVVOCATURA PER I DIRITTI LGBTI 
 
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20 When considering discrimination, it is necessary to compare two positions: that of 
the person who claims to have been discriminated against and that of persons who 
do not have the characteristics on which the alleged discrimination was based. 
21 In the present case, discrimination during recruitment is being considered. 
22 On the basis of both the EU and national legislation referred to by the referring 
court, that court finds that there must be a real risk of discrimination and 
questions whether, in the absence of a particular employment negotiation or of a 
public offer of work, mere statements are sufficient to amount to discrimination. 
This would, in its view, be incompatible with the principle of the rule of law and 
fundamental rights. 
23 In that regard, the referring court refers to the case-law of the Court of Justice (in 
particular, Cases C-54/07 and C-81/12), and notes that the Court, on the one hand, 
has found that discrimination exists where there is an actual discriminatory 
recruitment policy but, on the other hand, has never gone as far as finding that 
Directive 2000/78 prohibits the mere expression of an opinion which, while open 
to criticism and unacceptable, had no connection with a discriminatory selection 
of staff liable to deter certain candidates in an ongoing procedure. 
24 Conversely, the referring court points out that the Court of Justice has taken note 
of the need to balance the interests of those involved, in particular when rights and 
freedoms equally recognised by the Charter of Fundamental Rights of the 
European Union might be weakened (see Case C-157/15). 
25 In the light of the foregoing considerations, the referring court considers it 
necessary for the Court of Justice to interpret Directive 2000/78 and express an 
opinion on the limitations resulting from that directive.