NH v Associazione Avvocatura per i diritti LGBTI - Rete Lenford.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:289
• Docket Number: C-507/18
• Date: 23 April 2020

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

23 April 2020 (*)

(Reference for a preliminary ruling — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 3(1)(a), Article 8(1) and Article 9(2) — Prohibition of discrimination based on sexual orientation — Conditions for access to employment or to occupation — Concept — Public statements ruling out recruitment of homosexual persons — Article 11(1), Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union — Defence of rights — Sanctions — Legal entity representing a collective interest — Standing to bring proceedings without acting in the name of a specific complainant or in the absence of an injured party — Right to damages)

In Case C‑507/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Supreme Court of Cassation, Italy), made by decision of 30 May 2018, received at the Court on 2 August 2018, in the proceedings

NH

v

Associazione Avvocatura per i diritti LGBTI — Rete Lenford,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan, P.G. Xuereb and I. Jarukaitis (Rapporteur), Presidents of Chambers, J. Malenovský, L. Bay Larsen, T. von Danwitz, C. Toader, F. Biltgen, K. Jürimäe, C. Lycourgos and N. Piçarra, Judges,

Advocate General: E. Sharpston,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 15 July 2019,

after considering the observations submitted on behalf of:

– NH, by C. Taormina and G. Taormina, avvocati,

– Associazione Avvocatura per i diritti LGBTI — Rete Lenford, by A. Guariso, avvocato,

– the Italian Government, by G. Palmieri, acting as Agent, and by G. De Socio, avvocato dello Stato,

– the Greek Government, by E.-M. Mamouna, acting as Agent,

– the European Commission, by B.-R. Killmann and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 31 October 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 2, 3 and 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

2 The request has been made in proceedings between NH and the Associazione Avvocatura per i diritti LGBTI — Rete Lenford (‘the Associazione’) concerning statements made by NH in a radio programme to the effect that he would not wish to work with homosexual persons in his law firm.

Legal context

European Union law

The Charter

3 Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) is headed ‘Freedom of expression and information’ and provides, in paragraph 1:

‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’

4 Article 15 of the Charter, headed ‘Freedom to choose an occupation and right to engage in work’, provides, in paragraph 1:

‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.’

5 Article 21 of the Charter, relating to non-discrimination, states in paragraph 1:

‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

Directive 2000/78

6 Recitals 9, 11, 12 and 28 of Directive 2000/78 state:

‘(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.

…

(11) Discrimination based on … sexual orientation may undermine the achievement of the objectives of the [FEU] Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.

(12) To this end, any direct or indirect discrimination based on … sexual orientation as regards the areas covered by this Directive should be prohibited throughout the [Union]. …

…

(28) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. …’

7 Article 1 of Directive 2000/78 provides:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

8 Article 2 of the directive, headed ‘Concept of discrimination’, provides:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(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 any of the grounds referred to in Article 1;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary …

…’

9 Article 3 of Directive 2000/78 defines the scope of that directive. According to Article 3(1)(a):

‘Within the limits of the areas of competence conferred on the [Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion’.

10 Article 8 of Directive 2000/78, headed ‘Minimum requirements’, provides, in paragraph 1:

‘Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.’

11 Article 9 of that directive falls within Chapter II, relating to remedies and enforcement. Under the heading ‘Defence of rights’, that article provides, in paragraph 2:

‘Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.’

12 Article 17 of Directive 2000/78, headed ‘Sanctions’, provides:

‘Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. …’

Italian law

13 Decreto legislativo n. 216 — Attuazione della direttiva 2000/78 per la parità di trattamento in materia di occupazione e di condizioni di lavoro (Legislative Decree No 216 implementing Directive 2000/78 for equal treatment in employment and occupation) of 9 July 2003 (GURI No 187, of 13 August 2003, p. 4), as applicable to the dispute in the main proceedings (‘Legislative Decree No 216’), provides, in Article 2(1)(a):

‘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’.

14 Article 3(1)(a) of that legislative decree is worded as follows:

‘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’.

15 Article 5 of Legislative Decree No 216 provides:

‘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...