5) Article 11(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) ( 5 ) provides that ‘everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’

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8) Article 52(1) states that ‘any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [EU] or the need to protect the rights and freedoms of others.’ Article 52(3) provides that ‘in so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent [EU] law providing more extensive protection.’

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41) Directive 2000/78 is a specific expression, in the areas that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter. ( 13 ) The directive does not itself create the principle of equal treatment in employment and occupation. The source of the principle prohibiting those forms of discrimination is found, as is clear from recitals 3 and 4 in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States. ( 14 ) The aim of the directive is to put into effect in the Member States the principle of equal treatment by laying down a general framework for combating discrimination in employment and occupation with a view to guaranteeing equal opportunities for all to contribute to the full participation of citizens in economic, cultural and social life and to realising their potential. ( 15 )

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61) Freedom of expression, the right to work and the principle of non-discrimination are all fundamental rights recognised by the Charter (in Articles 11(1), 15(1) and 21(1) respectively). Freedom of expression constitutes one of the essential foundations of a democratic society. As a principle, it applies not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. ( 28 ) Freedom of expression is, however, subject to limitations. ( 29 )

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64) Article 52(1) of the Charter permits limitations on the exercise of the rights and freedoms laid down therein, on condition that any such limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. ( 30 )

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71) I therefore consider that the prohibition, under Directive 2000/78, of statements which amount to direct discrimination in relation to access to employment cannot be considered to be an interference with freedom of expression such as to violate rights guaranteed by Article 11(1) of the Charter.

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77) In the light of all the foregoing, I conclude that remarks made by an interviewee during a radio programme stating that he would never hire a homosexual person to work in his law firm nor wish to use the services of such persons are capable of falling within the scope of Directive 2000/78, as being likely to hinder access to employment. When those statements are not made in the context of a current recruitment procedure, it is for the national court to assess whether the link with access to employment is not hypothetical, in the light of the status and capacity of the person who made the statements, the nature, content and context of the statements, as well as in the extent to which such statements may discourage persons belonging to the protected group from applying for employment with that employer. The prohibition, under Article 2 and 3 of Directive 2000/78, of statements that amount to direct discrimination in relation to access to employment cannot be considered to be an interference with freedom of expression such as to violate rights guaranteed by Article 11(1) of the Charter.

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111) I therefore propose that the Court should reply to the questions referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:  

• Remarks made by an interviewee during a radio programme stating that he would never hire a homosexual person to work in his law firm nor wish to use the services of such persons are capable of falling within the scope of Article 3(1)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, as being likely to hinder access to employment. 
• When those statements are not made in the context of a current recruitment procedure, it is for the national court to assess whether the link with access to employment is not hypothetical, in the light of the status and capacity of the person who made the statements, the nature, content and context of the statements, as well as the extent to which such statements might discourage persons belonging to the protected group from applying for employment with that employer.  
• The prohibition, under Article 2 and 3 of Directive 2000/78, of statements that amount to direct discrimination in relation to access to employment cannot be considered to be an interference with freedom of expression such as to violate rights guaranteed by Article 11(1) of the Charter. 
• Articles 8(1) and 9(2) of Directive 2000/78 permit national legislation giving associations with a legitimate interest standing to bring proceedings for the enforcement of obligations under Directive 2000/78 in the absence of an identifiable victim. It is for national law to lay down the criteria to determine whether an association has such a legitimate interest, subject to the principles of equivalence and effectiveness. 
• An association that has a legitimate interest in bringing proceedings may ask for discriminatory conduct to be sanctioned in an effective, proportionate and dissuasive manner, including by an award of damages, under the conditions laid down by national law.