Chiara De Capitani, Ph.D. Researcher in International Studies at
the University of Naples "L'Orientale"
Introduction
Case C
‑507/18
NH v Associazione Avvocatura per i diritti
LGBTI — Rete Lenford (the
present
case), can be best summarized through the aviary metaphors used by Advocate
General Eleanor Sharpston in her opinion (
AG’s
Opinion): the ruling balances freedom of expression with the “volatility” of
discriminatory statements and analyses which roles members of associations can
play in the fight against discrimination, whether they have beaks, wings and
feathers or not (see more
infra).
This Court of Justice of the
European Union (CJEU) case raises many interesting issues and builds on the
previous rulings of 2008 – C-54/07
Centrum
voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (Feryn)
– and 2013 – C-81/12
Asociaţia Accept v
Consiliul Naţional pentru Combaterea Discriminării (Asociaţia
Accept) rulings.
In all three cases, an employer (Feryn) or a person perceived as being
capable of exerting a decisive influence on the recruitment policy of an
employer (Asociatia Accept, present
case) publicly stated that they would not hire a person from a protected
category (ethnic minorities for Feryn,
LGBTI* individuals for Asociaţia Accept
and present case).
All three cases were brought
forward by associations, with no identifiable complainant and, in the case of Asociatia Accept and the present case,
the statements were released to the public while the employer had no ongoing or
planned recruitment procedures.
Therefore, the Court tries to
answer the following questions:
Can discriminatory statements
fall under the scope of the directive when no recruitment procedures are
ongoing? If so, following which criteria?
How can national Courts assess
the balance between the right to freedom of expression and combating
discrimination in employment and occupation?
Where no identifiable complainant
can be found, can an association bring legal proceedings and ask to obtain pecuniary
damages in circumstances that are capable of constituting discrimination?
Facts of the case
During an interview in a radio
programme a lawyer (NH) stated that he would never hire a homosexual person to
work in his law firm nor wish to use the services of such persons. At the time
when he made those remarks, there was no current recruitment procedure open at
NH’s law firm.
Having considered that NH had
made remarks constituting discrimination on the ground of sexual orientation, the
Associazione Avvocatura per i diritti LGBTI — Rete Lenford (the Associazione), brought
proceedings against him, asking that he be ordered – among other sanctions – to
pay damages to the Associazione for non-material loss.
The action was successful at
first instance and upheld on appeal, therefore NH appealed once more in
cassation before the Supreme Court of Cassation, Italy (the referring court).
The referring court expresses
doubts as to whether the Associazione has standing to bring proceedings against
NH and ask for pecuniary damages, since the case has no identifiable
complainant. The referring court also asks whether NH’s statements – in light
in particular of the absence of an open recruitment position – fall within the
scope of
Directive
2000/78 (the Anti-Discrimination Employment Directive) on the basis that
they concern ‘access to employment’, or whether they should be regarded as mere
expressions of opinion.
Analysis
Past, present, and possible future discrimination
NH believes that since there was
no current or planned recruitment procedure at his law firm at the time he was
interviewed, his statements should not be considered to have been made in a
professional context and thus would fall outside of the scope of the
Anti-Discrimination Employment Directive.
However, Article 3 (1) (a) of that
Directive aims at protecting all persons, as regards both the public and
private sectors: “in relation to conditions for access to employment”. Since
the Directive is “a specific expression, in the areas that it covers, of the
general prohibition of discrimination” laid down in Article 21 of the
Charter
of Fundamental Rights of the European Union (the Charter) and because of
its objectives and the nature of the rights it seeks to safeguard, the Court
notes that its scope, defined in Article 3, “cannot be defined restrictively”.
The Court has already found in
the rulings Feryn and Asociaţia Accept that discriminatory
statements can hinder the “access to employment” of a protected category.
Indeed, as stated by Advocate General Maduro and recalled by both the Court and
AG Sharpston in the present case: “in any recruitment process, the greatest
‘selection’ takes place between those who apply, and those who do not. Nobody
can reasonably be expected to apply for a position if they know in advance
that, because of their racial or ethnic origin, they stand no chance of being
hired. Therefore, a public statement from an employer that persons of a certain
racial or ethnic origin need not apply has an effect that is anything but
hypothetical”.
Furthermore, discriminatory
statements have a lasting effect in time.
In the
Feryn ruling, the Court, interpreting Article 8 of
Directive
2000/43 (The Race Equality Directive) - identical to Article 10 of the
Anti-Discrimination Employment Directive - established that past statements
create “presumption of a discriminatory recruitment policy” which the employer can
rebut in Court.
The Court in the present judgment
seems to confirm the duration in time, in the past, present but also possibly
in the future, as it recognizes – in its answer to the first question – that
statements made “outwith any current or planned procedure” can amount to
discrimination as long they fulfil a number of non-hypothetical criteria (para
58), which we’ll examine now.
The interpretation of ‘access to employment’
Both the AG and the Court proceed
by highlighting a list of criteria National Courts have to follow to establish
when discriminatory statements present a sufficient link with ‘access to
employment’ to fall under the scope of the
Anti-Discrimination
Employment Directive.
First, the status of the person
making the statements and the capacity in which they made them, which must
establish either that they are a potential employer or are, in law or in fact,
capable of exerting a decisive influence on the recruitment policy or a
recruitment decision of a potential employer, or, at the very least, may be
perceived by the public or the social groups concerned as being capable of
exerting such influence, even if they do not have the legal capacity to define
the recruitment policy of the employer concerned or to bind or represent that
employer in recruitment matters.
The latter point is particularly
interesting given that both in Asociaţia
Accept and in the present case both authors of the discriminatory
statements, during their respective interviews, claimed and acted as if they played
an important role and a very influential part in the recruitment process of
their company (para 35, Asociaţia Accept;
para 20, AG opinion), and were perceived as such by the public. However,
ironically, their exact status within the company was either unclear (present
case, para 43) or was becoming less important than what they were telling and
presenting the public (Asociaţia Accept,
para 32).
Furthermore, National Courts,
following the Asociaţia Accept
ruling, should consider as part of their assessment of this criteria whether
the actual employer did or did not clearly distance itself from the statements
concerned (para 41, present case).
The second criterion to consider is
the nature and content of the statements concerned. They must relate to the
conditions for access to employment or to occupation with the employer
concerned and establish the employer’s intention to discriminate on the basis
of one of the criteria laid down by the Anti-Discrimination Employment
Directive. This has clearly been the case for all three rulings where three
individuals publicly stated they would not hire ethnic minorities (Feryn) or LGBTI individuals (Asociaţia Accept, present case) within
“their” company.
It’s interesting to note that in
her opinion, the AG adds to these criteria that the statements must also “be of
such a nature as to dissuade persons belonging to the protected group from
applying if and when a vacancy with that potential employer becomes available”
(para 55 of opinion). The Court does not add this element to the list of
criteria but will consider it when assessing the interference of the
Directive’s application with the right to freedom of speech (see infra).
Finally, the third criteria National
Courts have to consider is the context in which the statements at issue were
made “—in particular, their public or private character, or the fact that they
were broadcast to the public, whether via traditional media or social networks
— must be taken into consideration”.
Unfortunately, neither the Court
nor the AG elaborate on why they believe this distinction between private and
public statements is of such relevance. We can assume, given the AG’s beautiful
paragraph at the beginning of her opinion, that public statements “have wings”
and “travel fast and spread quickly”, meaning they are “disseminated rapidly
and have consequences”. The likelihood that NH’s statements on the radio
reached, hurt and affected many members of the LGBTI* community because of
their publicity and fluttering in newspapers and social media is without
question. However, as the AG herself notes “one can easily imagine the chilling
effect of homophobic ‘jokes’ made by a potential employer in the presence of
LGBTI applicants” (in a private setting, presumably). Since Feryn, Asociaţia Accept and the present case all concern public
statements, hopefully the Court will elaborate on this aspect of “statements”
made in a private setting at another time.
The interference with freedom of expression
The AG notes in her opinion that the
referring court “expresses doubts as to whether NH’s statements fall within the
scope of (the Anti-Discrimination Employment Directive) on the basis that they
concern ‘employment’, or whether they should be regarded as mere expressions of
opinion, unrelated to any discriminatory recruitment procedure” (para 25).
Furthermore, she notes (para 37) that at the hearing the Italian Government
emphasised that the statements were not made during a “serious broadcast with
the participation of employers and news journalists” but during an
“irony-filled programme of political satire”.
Both the AG and the Court proceed
thus to examine why the above interpretation of the Anti-Discrimination
Employment Directive is not affected by the possible limitation to the exercise
of freedom of expression using the parameters provided by Article 52 (1) of the
Charter which, as Professor Peers
puts
it, “deals with the arrangements for the limitation of rights”. Unsurprisingly,
he notes: “the greatest volume of [EU] case law concerning the grounds for
interference with rights relates to Article 10 ECHR on Freedom of expression”.
Indeed, the present case has
sparked controversy also among some academics (
Miller,
Tanzarella)
which believe the AG and the Court have failed to truly assess the
proportionality between protection against discrimination and its interference
with the right to freedom of expression - I do not believe this to be the case,
especially in light on the “necessity requirement” that I will analyse further
on.
Let’s flutter back to the ruling:
Article 52(1) of the Charter contains
three different elements:
-
a procedural rule (limitations on rights ‘must
be provided for by law’);
-
a rule on the justifications for limiting rights
(‘objectives of general interest recognised by the Union or the need to protect
the rights and freedoms of others’), and
-
several interlinked rules on the balancing test
to be applied as between rights and limitations (the obligation to ‘respect the
essence of’ the rights; the ‘principle of proportionality’; and the requirement
of necessity).
The Court and AG go through all
the above-cited elements in an orderly fashion.
The limitations to the exercise
of the freedom of expression that may flow from the Anti-Discrimination
Employment Directive are indeed provided for by law, since they result directly
from that directive.
They respect the essence of the
freedom of expression, since they are applied only for the purpose of attaining
the objectives of said Directive, namely to safeguard the principle of equal
treatment in employment and occupation and the attainment of a high level of
employment and social protection; Further to this argument, the Court notes in
paragraphs 37 and 38 of the ruling “recital 11 of the directive states that
discrimination based inter alia 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. (The) Directive is thus a specific
expression, within the field that it covers, of the general prohibition of
discrimination laid down in Article 21 of the Charter”;
They respect the principle of
proportionality in so far as the prohibited grounds of discrimination and the
material and personal scope are defined in the directive, and the interference
with the exercise of freedom of expression does not go beyond what is necessary
to attain the objectives of the directive, in that only statements that
constitute discrimination in employment and occupation are prohibited.
Finally, the Court elaborates
with more detail the last requirement, the “necessity test”: the limitations to
the exercise of freedom of expression arising from Anti-Discrimination
Employment Directive are necessary to guarantee the rights in matters of
employment and occupation of persons who belong to a protected group. The AG
opinion underlines (in para 70) the following section of Article 10(2) of the
European Convention on Human Rights (ECHR) which seems to be perfectly
complementary with Art 52(1) of the Charter: “the exercise of (freedom of
expression) 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 (…) for the protection of (…) rights of
others”.
Analysing the “necessity test”
from another perspective, the Court adds that considering statements as falling
outside the scope of that directive solely because they were made “outwith a
recruitment procedure, in particular in the context of an audiovisual
entertainment programme, or because they allegedly constitute the expression of
a personal opinion” could make the “very essence of the protection afforded by
that directive in matters of employment and occupation (…) become illusory”
(para 54 of the judgment).
Finally, the Court aligns itself
with the AG opinion that “in any recruitment process, the principal selection
takes place between those who apply, and those who do not” and mentions paragraph
57 of her opinion, where she quotes a section of AG Maduro’s opinion in Feryn: “(A) public statement from an
employer that persons of a certain racial or ethnic origin need not apply has
an effect that is anything but hypothetical. To ignore that as an act of
discrimination would be to ignore the social reality that such statements are
bound to have a humiliating and demoralising impact on persons of that origin
who want to participate in the labour market and, in particular, on those who
would have been interested in working for the employer at issue”.
Associations with standing to bring legal proceedings
The Court moves on to the first
question: whether the Anti-Discrimination Employment Directive must be
interpreted as precluding national legislation under which an association of
lawyers whose objective is the judicial protection of persons having in
particular a certain sexual orientation and the promotion of the culture and
respect for the rights of that category of persons, automatically, on account
of that objective and irrespective of whether it is a for-profit association,
has standing to bring legal proceedings for the enforcement of obligations
under that directive and, where appropriate, to obtain damages, in
circumstances that are capable of constituting discrimination, within the
meaning of that directive, against that category of persons and it is not
possible to identify an injured party.
The Court analyses step by step
the various facets of this complex question.
According to Article 9(2) of the Anti-Discrimination
Employment Directive, Member States are to ensure that associations,
organisations or other legal entities which have a legitimate interest in
ensuring that the provisions of the directive are complied with, may engage, either
on behalf or in support of a complainant, with his or her approval, in any
judicial and/or administrative procedure provided for the enforcement of
obligations under the directive.
Since no injured party can be
identified in the present case, Article 9(2) of the Directive does not require
an association such as that at issue in the main proceedings to be given
standing in the Member States to bring judicial proceedings. Nevertheless,
Article 8(1) of the Anti-Discrimination Employment Directive provides that
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 that
directive. This is the case for Italy where article 5 of its Legislative Decree
n° 216/2003 provides that “trade unions, associations and organisations (…)
shall also have standing in cases of collective discrimination where it is not
automatically and immediately possible to identify individuals affected by the
discrimination”.
Therefore, as was the case with Asociaţia Accept, the Court recalls that
Article 9(2) of the Anti-Discrimination Employment Directive in no way
precludes a Member State from laying down, in its national law, the right of
associations with a legitimate interest in ensuring compliance with that
directive to bring legal or administrative proceedings to enforce the
obligations resulting therefrom without acting in the name of a specific
complainant or in the absence of an identifiable complainant.
In those cases, it is for that
Member State to decide under which conditions an association such as that at
issue in the main proceedings may bring legal proceedings and for a sanction to
be imposed in respect of such discrimination.
With regards to sanctions, the
Court, quoting
Asociaţia Accept, recalls
that sanctions are required, in accordance with Article 17 of the Anti-Discrimination
Employment Directive, to be effective, proportionate and dissuasive, regardless
of whether there is any identifiable injured party. As noted by
Djelassi
and Mertens, sanctions can therefore, include the payment of pecuniary
damages also in the present case where there is no identifiable complainant and
no ongoing recruitment procedure.
Similarly, the Court leaves
Member State to determine whether the for-profit or non-profit status of the
association is to have a bearing on the assessment of its standing to bring
such proceedings. The AG provides further insight on this issue: mentioning the
written observations of the Greek Government, she analyses the possible risk
that a profit-making association abusing the right to bring proceedings in
order to enhance its profits, which, according to the Greek Government, would
jeopardise the attainment of the objectives of the directive. First, she notes
that given the uncertainty inherent in litigation a “trigger-happy” approach to
launching actions would itself be “a risky strategy for a commercially minded
association to adopt”. Secondly, it is the duty of the national court to verify
if necessary that the Associazione is complying with its stated objectives to
protect the interests of the persons in question and with its statutes as
regards its status.
Although not repeated by the
Court, another aspect of the AG’s opinion in this issue is worth mentioning:
apparently NH had argued that the Associazione could not be considered to have
a legitimate interest to enforce the rights and obligations deriving from
Directive since its members were lawyers and trainee lawyers and supposedly they
were not all LGBTI* persons. The AG Opinion finds this argument irrelevant and
notes that “one does not require, of a public interest association dedicated to
protecting wild birds and their habitats, that all its members should have
wings, beaks and feathers”. She underlines that “there are many excellent
advocates within the LGBTI community, who can and do speak eloquently in
defence of LGBTI rights. That does not mean that others who are not part of
that community – including lawyers and trainee lawyers motivated simply by
altruism and a sense of justice – cannot join such an association and
participate in its work without putting at risk its standing to bring actions”.
Conclusions
The present case fills a series
of remaining gaps and completes the trilogy of rulings (Feryn, Asociaţia Accept, present
case) on discriminatory statements made in a public setting against hiring
employees from protected categories.
There are many more aspects that
hopefully the Court will clarify in the future: what about statements made in a
private setting? What about categories of individuals that are protected by
Article 21 of the Charter but not by the scope of the Directive
(discriminations based on social origin, genetic features, language, political or
any other opinion, property, birth)? The abbreviation LGBTI is often used in
the ruling, yet could the directive be considered to apply to members of that
community other than homosexual and bisexual individuals?
Nevertheless, this case will
likely have an important impact in the daily lives of LGBTI* individuals,
whether they are thinking of applying for a job or currently working with a
discriminating employer or persons with/perceived to have an influential role
within the company.
This case is, in other words, pretty
fly for a discrimination guide.
Barnard & Peers: chapter 20
