NH v. Associazione Avvocatura per i diritti LGBTI – Rete Lenford, Case C‑507/18, CJEU (Grand Chamber), 23 April 2020

Public statements made by a lawyer in a radio programme to the effect that he would not wish to work with homosexual persons in his law firm. Discrimination based on sexual orientation.

Directive 2000/78/EC of the Council of 27 November 2000

1. If certain circumstances, such as the absence of an ongoing or planned selection procedure, are not decisive for determining whether declarations relate to a specific recruitment policy and fall within the notion of 'conditions of access to employment and work' pursuant to Article 3 (1) (a) of Directive 2000/78, however, it is necessary for such declarations to fall within the material scope of the directive that they can actually be traced back to the hiring policy of a particular employer, which requires that the link they have with the conditions of access to employment and work with that employer is not hypothetical. The existence of this connection must be assessed by the national court seised in the context of a global assessment of the circumstances characterising the declarations in question.

2. To establish whether the declarations made by the employer have a real connection with the conditions of access to employment with this employer, various criteria need to be taken into consideration. Firstly, the status of the person making the statements being considered and the capacity in which he or she made them, which must establish either that he or she is a potential employer or is, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer, or, at the very least, may be perceived by the public or the social groups concerned as being capable of exerting such influence, even if he or she does not have the legal capacity to define the recruitment policy of the employer concerned or to bind or represent that employer in recruitment matters. Secondly,  the nature and content of the statements concerned must relate to the conditions for access to employment or to occupation with the employer concerned and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by Directive 2000/78.Third, the context in which the statements at issue were made — in particular, their public or private character, or the fact that they were broadcast to the public, whether via traditional media or social networks — must be taken into consideration.

3. The 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 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.