June 13, 2012
Do the provisions of the directive on equal treatment in employment apply when a shareholder of a football club makes a homophobic statement to the mass media? Romanian court made a reference for a preliminary ruling (Case C-81/12).
The owner of the FC Steaua București, a Romanian professional football club based in Bucharest, said: “Not even if I had to close Steaua down would I accept a homosexual on the team.” Curtea de Apel Bucureşti is interested whether the provisions of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation apply in this situation.
The court also asks to what extent may the statements be regarded as ‘facts from which it may be presumed that there has been direct or indirect discrimination’ within the meaning of Article 10(1) of Council Directive as regards the defendant S.C. Fotbal Club Steaua Bucureşti S.A.? If this turned out to be the case, questions could arise concerning the burden of proof.
Romanian courts is interested to what extent would there be probatio diabolica (demanding an impossible proof) if the burden of proof referred to in Article 10(1) of Council Directive were to be reversed in this case and the defendant S.C. Fotbal Club Steaua Bucureşti S.A. were required to demonstrate that there has been no breach of the principle of equal treatment and, in particular, that recruitment is unconnected with sexual orientation.
Finally the court wants to know whether the fact that it is not possible to impose a fine in cases of discrimination after the expiry of the limitation period of six months from the date of the relevant fact, laid down in a government decree conflict with Article 17 of Council Directive given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive.
Zuzanna Warso, lawyer at Europe of Human RightsAuthor : Europe of Human Rights