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CJEU Case C-507/18 /Judgment

NH v Associazione Avvocatura per i diritti LGBTI - Rete Lenford
Policy area
Employment and social policy
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
23/04/2020
ECLI (European case law identifier)
ECLI:EU:C:2020:289

Charte des droits fondamentaux de l'Union européenne

Title II: Freedoms

Article 11 - Freedom of expression and information

Title II: Freedoms

Article 15 - Freedom to choose an occupation and right to engage in work

Title III: Equality

Article 21 - Non-discrimination

Title VII: General provisions

Article 52 - Scope and interpretation

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  • CJEU Case C-507/18 /Judgment

    Key facts of the case:

    Reference for a preliminary ruling — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 3(1)(a), Article 8(1) and Article 9(2) — Prohibition of discrimination based on sexual orientation — Conditions for access to employment or to occupation — Concept — Public statements ruling out recruitment of homosexual persons — Article 11(1), Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union — Defence of rights — Sanctions — Legal entity representing a collective interest — Standing to bring proceedings without acting in the name of a specific complainant or in the absence of an injured party — Right to damages

    Outcome of the case:

    On those grounds, the Court (Grand Chamber) hereby rules:

    1. The concept of ‘conditions for access to employment … or to occupation’ in 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 must be interpreted as covering statements made by a person during an audiovisual programme according to which that person would never recruit persons of a certain sexual orientation to his or her undertaking or wish to use the services of such persons, even though no recruitment procedure had been opened, nor was planned, provided that the link between those statements and the conditions for access to employment or occupation within that undertaking is not hypothetical.
    2. Directive 2000/78 must be interpreted as not precluding national legislation under which an association of lawyers whose objective, according to its statutes, 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.
  • Paragraphs referring to EU Charter

    3) Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) is headed ‘Freedom of expression and information’ and provides, in paragraph 1:

    ‘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.’

    4) Article 15 of the Charter, headed ‘Freedom to choose an occupation and right to engage in work’, provides, in paragraph 1:

    ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.’

    5) Article 21 of the Charter, relating to non-discrimination, states in paragraph 1:

    ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

    ...

    38) Directive 2000/78 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 (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 47).

    ...

    48) It is true that freedom of expression, as an essential foundation of a pluralist, democratic society reflecting the values on which the Union, in accordance with Article 2 TEU is based, constitutes a fundamental right guaranteed by Article 11 of the Charter (judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraph 31).

    49) However, as is apparent from Article 52(1) of the Charter, freedom of expression is not an absolute right and its exercise may be subject to limitations, provided that these are provided for by law and respect the essence of that right and the principle of proportionality, namely if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. As the Advocate General has pointed out in points 65 to 69 of her Opinion, that is the case here.