Article 11 - Freedom of expression and information
Article 15 - Freedom to choose an occupation and right to engage in work
Article 21 - Non-discrimination
Article 52 - Scope and interpretation
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:
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:
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.’
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.’
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 )
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 )
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 )
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.
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.
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: