OPINION OF ADVOCATE GENERAL SHARPSTON delivered on 31 October 2019(1)

Case C‑507/18 NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford

(Request for a preliminary ruling from the Corte suprema di cassazione (Italy))

(Directive 2000/78/EC — Equal treatment in employment and occupation — Discrimination based on sexual orientation — Article 3(1)(a) — Access to employment — Public statements excluding the recruitment of homosexuals — Article 8(1) — Article 9(2) — Enforcement and remedies — Standing of an association in the absence of an identifiable victim — Claims for damages)

Conclusion

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.

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