Judgment of the Court (Third Chamber) of 25 April 2013 (request for a preliminary ruling from the Curtea de Apel Bucureşti - Romania) - Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării

(Case C-81/12) 

(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)

Language of the case: Romanian

Referring court

Curtea de Apel Bucureşti

Parties to the main proceedings

Applicant: Asociaţia ACCEPT

Defendant: Consiliul Naţional pentru Combaterea Discriminării

Re:

Request for a preliminary ruling - Curtea de Apel Bucureşti - Interpretation of Articles 2(2)(a), 10(1) and 17 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) - Criteria used in the selection of football club staff discriminatory on grounds of sexual orientation - Applicability of the directive when statements are made in the press, in the absence of an actual recruitment procedure - Facts from which it may be presumed that there has been direct or indirect discrimination - Burden of proof - Body of penalties applicable when those provisions are infringed - Whether permissible for national legislation to preclude the imposition of a fine for infringement once the limitation period of six months has expired - Duty to impose effective, proportionate and dissuasive sanctions

Operative part of the judgment

1.    Articles 2(2) and 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that facts such as those from which the dispute in the main proceedings 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 come from a person presenting himself and being perceived in the media and among the general public as playing a leading role in that club without, however, necessarily having legal capacity to bind it or to represent it in recruitment matters;

2.    Article 10(1) of Directive 2000/78 must be interpreted as meaning that, if facts such as those from which the dispute in the main proceedings arises 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;

3.    Article 17 of Directive 2000/78 must be interpreted as meaning that it precludes national rules by virtue of which, where there is a finding of discrimination on grounds of sexual orientation within the meaning of that directive, it is possible only to impose a warning such as that at issue in the main proceedings where such a finding is made after the expiry of a limitation period of six months from the date on which the facts occurred where, under those rules, such discrimination is not sanctioned under substantive and procedural conditions that render the sanction effective, proportionate and dissuasive. It is for the national court to ascertain whether such is the case regarding the rules at issue in the main proceedings and, if necessary, to interpret the national law as far as possible in light of the wording and the purpose of that directive in order to achieve the result envisaged by it.

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1 - OJ C 126, 28.4.2012.