Is a mere written warning the appropriate way for European courts to punish anti-gay harassment? In today’s Asociaţia ACCEPT judgment, the Court of Justice of the European Union examined this issue.
The case concerned Romanian tycoon George Becali and his football club, Steaua Bucharest. Becali’s public statements that his club would not employ a gay footballer led ACCEPT, the Romanian lesbian, gay, bi-sexual and transgender organisation, to bring administrative law charges against Becali and the club. The Romanian anti-discrimination council rejected the charge against the club. The council convicted Becali of harassment, yet only imposed a written waning. ACCEPT appealed and the Bucharest Court of Appeal referred questions of law to the CJEU for a preliminary ruling on the interpretation of the European Union law barring anti-gay discrimination in employment (Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation). We wrote earlier in detail about the legal background to the case, while you can read about more about the reaction to the ruling in Romania here
The case presented the Luxembourg court with an opportunity to expound on the “effective, proportionate and dissuasive sanctions” required under the Directive in cases of discrimination. Under Romanian law, sanctions for discrimination include a fine of up to 1800 Euros and community service. The domestic anti-discrimination council however only gave a written warning because, by the time it reached its decision, more than six months had passed since Becali’s statements. The court ruled that this interpretation of Romanian law did not comply with the requirement to have a regime of “effective, proportionate and dissuasive sanctions,” where it results in a lack of meaningful penalty. Romanian law did not allow for a damages claim where there was no identifiable victim and a written warning appeared to relate generally to minor offences. The court therefore doubted whether it would be effective to limit the ”penalty” to such a warning, even if widely publicised.
The court disagreed with the Romanian anti-discrimination council in another important question. The council had accepted the club’s defence that because Becali’s statements were not legally binding on the club, therefore they were not evidence against the club. The Court of Justice ruled this unlawful. ACCEPT had correctly argued that discrimination was evidenced by Becali’s statements about the club and the club’s failure to distance itself from those statements, despite the public perception that he was the club’s patron.
The court also rejected the idea that the club would have had an impossible task of disproving discrimination. The club had the option of publicly denying that Becali’s statements reflected the club’s views and proving that the club had a policy of equal opportunities recruitment. On the contrary, the club lawyer’s allegedly affirmed that Becali’s approach was unwritten club policy.
The court also held that anti-gay direct discrimination can be found without there being any identifiable victim (ACCEPT had launched proceedings in the public interest). It ruled that Directive 2000/78 allows Romanian laws giving legal standing to non-governmental organisations to challenge homophobic harassment and discrimination where there is no such victim. The Romanian court was also entitled to decide that the burden-shifting rules under article 10 of Directive 2000/78 applied to such proceedings.
To support these rulings, the Court referred to its Feryn judgment under the European Union’s Directive 2000/43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Directive 2000/78 applies to “employment recruitment conditions” in the field of sport as well as it does in any other arena of employment.
The Romanian Court of Appeal will now resume consideration of ACCEPT’s appeal.
This case is a part of the strategic litigation program of ACCEPT Romania, supported by the Human Rights Initiative of the Open Society Foundations. Open Society Justice Initiative were legal advisors to ACCEPT before the Court of Justice of the European Union. We do not represent ACCEPT and the views in this blog should not be taken to be the views of ACCEPT.