Case C-81/12

Asociaţia Accept

v

Consiliul Naţional pentru Combaterea Discriminării

(Request for a preliminary ruling from the Curtea de Apel Bucureşti)

‛Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Articles 2(2)(a), 10(1) and 17 — Prohibition of discrimination on grounds of sexual orientation — Concept of ‘facts from which it may be presumed that there has been discrimination’ — Modified burden of proof — Effective, proportionate and dissuasive sanctions — Person presenting himself and being perceived by public opinion as playing a leading role in a professional football club — Public statements ruling out the recruitment of a footballer presented as being homosexual’

Summary — Judgment of the Court (Third Chamber), 25 April 2013

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Facts from which it may be presumed that there has been discrimination — Concept — Public statements excluding the recruitment of a footballer presented as being a homosexual — Statements from a person perceived as playing the leading role in that football club — Included

Direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation does not mean that there must be an identifiable complainant who claims to have been the victim of such discrimination. Furthermore, taking account, in particular, of Article 8(1) of Directive 2000/78, Article 9(2) of that directive in no way precludes a Member State from laying down, in its national law, the right of associations with a legitimate interest in ensuring compliance with that directive to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant. Where a Member State provides for such a right, it follows from a combined reading of Articles 8(1), 9(2) and 10(1), (2) and (4) of Directive 2000/78 that that directive does not preclude the modification of the burden of proof, as provided for in Article 10(1), in situations in which such an association brings proceedings without acting on behalf of or in support of a specific complainant or with the latter’s approval. (see paras 36-38)

See the text of the decision. (see paras 41-43)

Articles 2(2) and 10(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that public statements excluding the recruitment of a footballer presented as being homosexual are capable of amounting to ‘facts from which it may be presumed that there has been discrimination’ as regards a professional football club even though the statements concerned came from a person presenting himself, and being perceived in the media and among the general public, as the senior manager of that club, without, however, necessarily having legal capacity to bind it to represent it in recruitment matters. The mere fact that such statements might not emanate directly from a given defendant is not necessarily a bar to establishing, with respect to that party, the existence of ‘facts from which it may be presumed that there has been discrimination’, within the meaning of Article 10(1) of that directive. It follows that a defendant employer cannot deny the existence of facts from which it may be inferred that it has a discriminatory recruitment policy merely by asserting that statements suggestive of the existence of a homophobic recruitment policy come from a person who, while claiming and appearing to play an important role in the management of that employer, is not legally capable of binding it in recruitment matters. The fact that such an employer might not have clearly distanced itself from the statements concerned is a factor which the court hearing the case may take into account in the context of an overall appraisal of the facts. (see paras 48-50, 53, operative part 1)

Article 10(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that, if public statements excluding the recruitment of a football player presented as being homosexual were considered to be ‘facts from which it may be presumed that there has been direct or indirect discrimination’ based on sexual orientation during the recruitment of players by a professional football club, the modified burden of proof laid down in Article 10(1) of Directive 2000/78 would not require evidence impossible to adduce without interfering with the right to privacy. In that context, defendants may refute the existence of such a breach before the competent national bodies or courts by establishing, by any legally permissible means, inter alia, that their recruitment policy is based on factors unrelated to any discrimination on grounds of sexual orientation. In order to rebut the non-conclusive presumption that may arise under the application of Article 10(1) of Directive 2000/78, 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 is indeed apt, in certain circumstances, to interfere with the right to privacy. In the overall assessment carried out by the national body or court hearing the matter, a prima facie case of discrimination on grounds of sexual orientation may be refuted with a body of consistent evidence. Such a body of evidence might include, for example, a reaction by the defendant concerned clearly distancing itself from public statements on which the appearance of discrimination is based, and the existence of express provisions concerning its recruitment policy aimed at ensuring compliance with the principle of equal treatment within the meaning of Directive 2000/78. (see paras 56-59, operative part 2)