CYIL 2014

HARALD CHRISTIAN SCHEU CYIL 5 ȍ2014Ȏ criterion in this case was whether the statements of Mr. Becali can be connected to a discriminatory policy of the club towards the members of sexual minorities. From such a perspective the formal status of the author of the statement is less important than his actual influence on the public policy and the public performance of the club. Therefore, the ECJ relied on some kind of overall impression and referred to the “perception of the public or social groups”, while it is not clear who is meant by the term “social group” in this case (i.e. whether it is the soccer fans, the soccer clubs or the members of minorities). The ECJ tersely stated that Mr. Becali was considered by mass media and public opinion to act as a “general manager” within FC Steaua. This pure impression, obviously, prevailed over the fact that the function of a “general manager” did not exist within FC Steaua. A further consideration by the ECJ is also related to the virtual world of the media. The Court blames FC Steaua as the potential employer of not clearly dissociating itself from the discriminatory statement of Mr. Becali. Such an omission is part of the overall impression and the public opinion. So, FC Steaua should have sent a denial to the media or, maybe even more in line with the spirit of non-discrimination law, it should have better publicly condemned Mr. Becali for his statements. As FC Steaua did not proceed in such way, the ECJ concluded that, in the case in question, facts were established from which it was possible to presume that there had been direct or indirect discrimination based on sexual orientation within the meaning of Article 1, paragraph 1 of the Directive 2000/78. 4.3 On the burden of proof Reaching such a conclusion with regard to the first problem of the case, the ECJ shifted its attention to the second major issue, which is the reversal of the burden of proof. Generally speaking, if a court finds evidence suggesting discrimination, the burden of proof is transferred from the plaintiff to the defendant, in our case to FC Steaua. The Bucharest Court of Appeal somewhat mischievously asked how the absence of discrimination based on sexual orientation can be proven in practice. According to common standards, the soccer club should present a proof showing that it also employs players with a different sexual orientation. But if FC Steaua, indeed, listed at least one homosexual player in its team, this would amount to a violation of the right of the player to respect for private life. 24 In the given case the ECJ, on one hand, clearly confirmed that the reversal of the burden of proof is applicable, but, on the other hand, it also pointed out that the defendant can prove the absence of discrimination not only by one piece of evidence but by “a body of consistent evidence”. The Court, however, did not specify how many different proofs can be used in cases of discrimination based on sexual orientation. The ECJ mentioned, indeed, only one concrete instrument, i.e. a clear public distancing

24 The Bucharest Court of Appeal here aptly speaks of a “probatio diabolica” (see paragraph 35 of the judgment).

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