The dispute arose from the homophobic public statements issued by A.B., a former shareholder of the Football Club. The statements regarded the sexual orientation of a Bulgarian football player whom the Football Club was considering signing. Mr. A.B. declared that, as there were rumours that the player was homosexual, he would not have the player in his future team, as he would prefer that the team be shut down or made up of junior players rather than including homosexual footballers. The Football Club never distanced itself from A.B.’s statements. On the contrary, the representative lawyer publicly admitted that the Football Club shares A.B.’s view. The Romanian National Council for Combating Discrimination (NCCD) sanctioned the discriminatory statements of A.B. with a warning by Decision no. 276 of 13 October 2010. In December 2010, Asocia?ia ACCEPT, a Romanian NGO defending and promoting the rights of LGBT persons, instituted proceedings in front of the Bucharest Court of Appeal to partly repeal Decision no. 276 of 13 October 2010. A.B., transferred his shares in the Football Club five days prior to the statements, but he still possessed considerable power and influence over the decisions taken in the Club.
The NGO ACCEPT claimed in front of the NCCD that A.B.’s statements:
- directly discriminated on the basis of sexual orientation, and
- violated the principle of equality regarding the hiring policy and brought an offense to the dignity of persons having a homosexual orientation.
NCCD decided that A.B.’s statements:
- fell outside the scope of work relations, as referred to by Art. 5 and 7 of Government Ordinance 137/2000 regarding the prevention and sanctioning of all forms of discrimination (GO 137/2000), but
- fell under the scope of Art. 15 of GO 137/2000, as these represented a behaviour which purpose was to touch upon the human dignity of a certain group of persons or to create a degrading or humiliating environment for them, based on their sexual orientation.
NCCD sanctioned A.B. with a warning, and not a fine as requested by NGO ACCEPT, due to the expiry of the 6 months period for liability punishable by fine.
The Court of Appeal, seized of the challenge of this decision, raised a question for a preliminary ruling to the CJEU. The referral court was aware of Firma Feryn precedent, in which CJEU found that a similar discriminatory statement on grounds of race made by an employer constitutes direct discrimination under Art. 2(2) of the Racial Equality Directive (2000/43/EC). However, due to the factual differences of the instant case (A.B. was not formally an employer, and the discriminatory conduct was based on sexual orientation rather than race), the Court of Appeal was not sure whether it would be distinguishable in legal terms from the situation in Firma Feryn. The Court of Appeal therefore asked whether A.B.’s statement could constitute direct discrimination under Art. 2(2) of Equal Employment Directive (2000/78/EC) or, at least, a fact establishing a presumption of discrimination that was for the defendant to rebut. The national court also asked whether shifting the burden of demonstrating the absence of discriminatory policies on the F.C.S. Football Club would yield unfair results, and whether the statutory limitation setting a 6-month period of limitation, after which no fine can be imposed for breach of the national provisions transposing the Directive, frustrates the correct enforcement of the rights protected therein.
The CJEU delivered the preliminary ruling in the ACCEPT case (Case C?81/12) on 25 April 2013. The CJEU confirmed at the outset that it is only for the national court to make the finding on the alleged discrimination, without prejudice to the CJEU’s power to provide national courts with helpful guidelines on how to reach such finding. On the questions raised by the Court of Appeal, CJEU held the following:
- Discriminatory statements from a person not formally related to the F.C.S. Football Club
CJEU found that Firma Feryn judgment does not establish a rule that discriminatory statements must come from persons who hold the legal power to implement recruitment policies. The Football Club is not spared from the burden of rebutting the presumption of having acted discriminatorily merely because the prima facie evidence (the statement) does not come from someone who can act on the Club’s behalf. The CJEU underlined that the nature of the statement must be assessed bearing in mind its impact on society at large. CJEU noted in this sense that, at the date of the statement, A.B. still appeared as a shareholder since the sale of shares had not been registered. Moreover, B.G. did not change his attitude in his public appearances after the sale and continued to describe himself as the ‘banker’ of the Football Club. In those circumstances, at least in the mind of the public, he maintained the same relationship with Football Club.
- Reverse burden of proof – prima facie evidence (statement) - probatio diabolica
The CJEU held that the acceptance of prima facie evidence (the statement), pursuant to Equal Employment Directive (2000/78/EC), does not have a disproportionate effect on the defendant [F.C.S. Football Club]. The defendant can refute the prima facie evidence through reasonably available evidence, for instance by proving that the employer had distanced itself from the homophobic statement.
- Proportionate, effective and dissuasive sanction
Finally, the CJEU recognized the Member States’ autonomy in setting the sanctions connected to discriminatory acts, but pointed out that merely symbolic sanctions cannot be deemed to satisfy the requirement of effectiveness, proportionality and dissuasiveness in the light of the wording and purpose of Equal Employment Directive (2000/78/EC). In addition, the duty of national courts to interpret domestic legislation in conformity with the Directive might lead to the conclusion that the time-limit for the imposition of the fine frustrates the purpose of the Directive and, therefore, must be interpreted out (set aside) in the main proceedings.