Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării.
Date: 2013-04-25
41. It should be noted at the outset that, in proceedings brought pursuant to Article 267 TFEU, the Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 69 and the case-law cited). Thus, it is not for the Court to take a view on whether the facts on which the dispute in the main proceedings is based, such as those set out in the order for reference, establish discrimination on grounds of sexual orientation.
42. As is clear in particular from recital 15 in the preamble to Directive 2000/78, the assessment of the facts from which it may be inferred that there has been discrimination is a matter for national judicial or other competent bodies, in accordance with national law or practice (see Case C‑415/10 Meister  [2012] ECR I‑0000, paragraph 37). In accordance with the mechanism laid down in Article 10(1) thereof, if such facts are established, it is for the respondent to prove that there has been no breach of the principle of equal treatment within the meaning of Article 2(1).
43. That said, the Court may provide the national court with all guidance on the interpretation of EU law that could be useful for its decision (see, in particular, Feryn , paragraph 19 and the case-law cited, as well as Case C‑163/10 Patriciello  [2011] ECR I‑0000, paragraph 21).
45. It is irrelevant in that regard that, as was stressed in the main proceedings, the system of recruitment of professional footballers is not based on a public tender or direct negotiation following a selection procedure requiring the submission of applications and pre-selection of players having regard to their interest for the employer. Indeed, it is clear from well-established case-law that, having regard to the objectives of the European Union, sport is subject to European Union law to the extent that it constitutes an economic activity (see, in particular, Case 13/76 Donà  [1976] ECR 1333, paragraph 12, and Case C‑325/08 Olympique Lyonnais  [2010] ECR I‑2177, paragraph 27). That is the case as regards the activities of professional or semi-professional footballers where they are in gainful employment or provide a remunerated service (Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 73).
51. In that connection, it should be recalled that the perception of the public or social groups concerned may be relevant for the overall assessment of the statements at issue in the main proceedings (see, to that effect, Case C‑470/03 AGM-COS.MET  [2007] ECR I‑2749, paragraphs 55 to 58).
55. In that connection, it is apparent from the case-law of the Court that, where facts from which it may be inferred that there has been discrimination within the meaning of that directive have been established, the effective application of the principle of equal treatment then requires that the burden of proof should fall on the defendants concerned, who must prove that there has been no breach of that principle (see, to that effect, Case C‑303/06 Coleman  [2008] ECR I‑5603, paragraph 54).
56. 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.
61. Article 17 of Directive 2000/78 confers on Member States responsibility for determining the rules on sanctions applicable to infringements of the national provisions adopted pursuant to that directive and for taking all measures necessary to ensure that they are applied. Although it does not call for the adoption of specific sanctions, that article requires that the sanctions applicable to infringements of national provisions adopted to implement that directive must be effective, proportional and dissuasive.
62. In proceedings in which an association empowered by law to that effect seeks a finding of discrimination, within the meaning of Article 2(2) of Directive 2000/78, and the imposition of a sanction, the sanctions that Article 17 of Directive 2000/78 requires to be laid down in national law must also be effective, proportionate and dissuasive, regardless of whether there is an identifiable victim (see, by analogy, Feryn , paragraphs 38 and 40).
63. It follows that the rules on sanctions put in place in order to transpose Article 17 of Directive 2000/78 into the national law of a Member State must in particular ensure, in parallel with measures taken to implement Article 9 of that directive, real and effective legal protection of the rights deriving from it (see, by analogy, in particular, Case C‑180/95 Draehmpaehl  [1997] ECR I‑2195, paragraphs 24, 39 and 40). The severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect (see, to that effect, in particular, Case C‑383/92 Commission  v United Kingdom  [1994] ECR I‑2479, paragraph 42, and Draehmpaehl , paragraph 40), while respecting the general principle of proportionality (see, to that effect, Case C‑101/01 Lindqvist  [2003] ECR I‑12971, paragraphs 87 and 88, and Case C‑430/05 Ntionik and Pikoulas  [2007] ECR I‑5835, paragraph 53).
67. It is for the referring court to ascertain in particular whether, in circumstances such as those set out in the preceding paragraph, those with legal standing to bring proceedings might be so reluctant to assert their rights under the national rules transposing Directive 2000/78 that the rules on sanctions adopted in order to transpose that directive are not genuinely dissuasive (see, by analogy, Draehmpaehl , paragraph 40). Regarding the dissuasive effect of the sanction, the referring court may also take account, where appropriate, of any repeat offences of the defendant concerned.
68. It is true that the mere fact that a specific sanction is not pecuniary in nature does not necessarily mean that it is purely symbolic (see, to that effect, Feryn , paragraph 39), particularly if it is accompanied by a sufficient degree of publicity and if it assists in establishing discrimination within the meaning of that directive in a possible action for damages.
69. However, in the present case it is for the referring court to ascertain whether a sanction such as a simple warning is appropriate for a situation such as that at issue in the main proceedings (see, by analogy Case C‑271/91 Marshall [1993] ECR I‑4367, paragraph 25). In that connection, the mere existence of an action for damages under Article 27 of GD No 137/2000, for which the limitation period for bringing proceedings is three years, cannot, as such, make good any shortcomings, in terms of effectiveness, proportionality or dissuasiveness of the sanction, that might be identified by that court with regard to the situation set out in paragraph 66 of the present judgment. As Accept maintained at the hearing before the Court, where an association of the type referred to in Article 9(2) of Directive 2000/78 does not act on behalf of specific victims of discrimination, it could be difficult to prove the existence of harm suffered by such an association for the purpose of the relevant rules of national law.
71. In any event, it should be recalled that, according to settled case-law, where a situation falls within the scope of a directive, national courts are obliged, when applying national law, to interpret the latter as far as possible in light of the wording and the purpose of the directive concerned in order to achieve the result envisaged by it (see, to that effect, Case 14/83 von Colson and Kamann  [1984] ECR 1891, paragraphs 26 and 28; Case C‑106/89 Marleasing  [1990] ECR I‑4135, paragraph 8; Case C‑196/02 Nikoloudi  [2005] ECR I‑1789, paragraph 73; and Case C‑406/08 Uniplex (UK) [2010] ECR I‑817, paragraphs 45 and 46).