Opinion of Advocate General Sharpston delivered on 31 October 2019.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2019:922
• Celex Number: 62018CC0507
• Court: Court of Justice (European Union)
• Date: 31 October 2019

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 31 October 2019(1)

Case C‑507/18

NH

v

Associazione Avvocatura per i diritti LGBTI — Rete Lenford

(Request for a preliminary ruling from the Corte suprema di cassazione (Italy))

(Directive 2000/78/EC — Equal treatment in employment and occupation — Discrimination based on sexual orientation — Article 3(1)(a) — Access to employment — Public statements excluding the recruitment of homosexuals — Article 8(1) — Article 9(2) — Enforcement and remedies — Standing of an association in the absence of an identifiable victim — Claims for damages)

1. Έπεα πτερόεντα, words have wings. The meaning of that expression, the origins of which can be traced back to Homer (2) is twofold: that words fly away, carried by the wind; (3) but also that words travel fast and spread quickly. The present case, concerning statements made during a radio interview, comes closer to the second meaning. Today, words spoken on the radio or television or transmitted via social media are disseminated rapidly and have consequences. The oral statements at the origin of the main proceedings have travelled as far as Luxembourg and give this Court the opportunity to interpret the provisions of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (4) Does the scope of Article 3(1)(a) of the directive, which prohibits discrimination in access to employment, also cover a general statement made on the radio to the effect that the interviewee would not recruit homosexuals to his law firm? And is it possible, in the absence of an identifiable victim, for an association to seek to enforce of the prohibition of discrimination in employment and occupation, including through the award of damages?

Legal framework

The European Convention for the Protection of Human Rights and Fundamental Freedoms

2. Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) provides that:

‘(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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

3. Article 14 prohibits discrimination, stating that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

4. A right to employment is not, however, amongst the specific rights protected by the ECHR.

EU law

The Charter of Fundamental Rights of the European Union

5. Article 11(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (5) provides that ‘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.’

6. Article 15(1) states that ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.’

7. Article 21(1) prohibits ‘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’.

8. Article 52(1) states that ‘any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [EU] or the need to protect the rights and freedoms of others.’ Article 52(3) provides that ‘in so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent [EU] law providing more extensive protection.’

Directive 2000/78

9. The recitals of Directive 2000/78 state, in particular:

‘(1) … the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights …

…

(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 EC 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.

…

(15) The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice.

…

(28) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(29) Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection. To provide a more effective level of protection, associations or legal entities should also be empowered to engage in proceedings, as the Member States so determine, either on behalf or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts.

…

(30) The effective implementation of the principle of equality requires adequate judicial protection against victimisation.

…

(35) Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obligations under this Directive.

…

(37) In accordance with the principle of subsidiarity … the objective of this Directive, namely the creation within the [EU] of a level playing-field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States … .’

10. Article 1 provides that the purpose of the 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’.

11. Article 2 (‘Concept of discrimination’) states:

‘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:

…

5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’

12. According to Article 3 (‘Scope’):

‘1. Within the limits of the areas of competence conferred on the [EU], 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; …’

13. Article 8 provides that:

‘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.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.’

14. Under Article 9 (‘Defence of rights’):

‘1. Member States shall ensure that judicial and/or administrative procedures … for the enforcement of obligations under this...