CYIL 2014

232

HARALD CHRISTIAN SCHEU

CYIL 5 ȍ2014Ȏ

due to a number of photos that appeared in the media some people considered him

a homosexual. Considering these circumstances G. Becali declared in a somewhat

confused manner that, even if he knew that Ivan Ivanov was not gay, he would not

take him to the team, because in the newspapers there had been too many stories

about his homosexuality.

Anyway, a contract was never signed between I. Ivanov

and FC Steaua.

The organization Accept took the case and submitted a complaint against G. Becali

and against FC Steaua to the competent national authority (Consiliul National).

Accept argued that both defendants had infringed the principle of equal treatment

during the recruitment process. According to Accept, the case showed signs of direct

discrimination and of the violation of the dignity of homosexuals.

The Consiliul Naţional, however, concluded that the case in question did not

concern any employment relationship, because the public statement of Mr. Becali

could not be considered as the statement of the employer or a person who was in

charge of recruitment. According to the Consiliul Naţional, FC Steaua for this reason

was not responsible for the violation of anti-discrimination law. As regards the liability

of Mr. Becali, the Consiliul Naţional qualified his statement as discrimination on the

level of harassment. As the only possible sanction under national law,

a warning was

imposed on Mr. Becali.

Accept disagreed with this solution and before the Court

of Appeal it insisted that the statements of Mr. Becali are related to employment and

that in this case there is accountability of FC Steaua as a potential employer.

The Court of Appeal in Bucharest realized the European dimension of the case

and carefully studied the leading judgment of the ECJ in the Feryn case, which also

concerned potentially discriminatory statements of an employer.

However, in the

Feryn case the Court had to deal with statements of the directors of a company,

who legitimately represented the legal person with respect to recruitment. It was,

See the second part of the statement: “Not even if I had to close [FC Steaua] down would I accept a

homosexual on the team. Maybe he’s not a homosexual. But what if he is? There’s no room for gays

in my family, and [FC Steaua] is my family. Rather than having a homosexual on the side it would be

better to have a junior player. This isn’t discrimination: no one can force me to work with anyone. I

have rights just as they do and I have the right to work with whoever I choose. Even if God told me in

a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him. Too much

has been written in the papers about his being a homosexual. Even if [player X’s current club] gave him

to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drinker … but if

he’s a homosexual I don’t want to know about him.”

Council Directive 2000/78/EC has been transposed to Romanian law mainly by the Government

Decree No. 137/2000, which in its Article 26 provides that acts of discrimination shall be sanctioned

by a fine of RON 400,- to 4.000,- (i.e. the equivalent of approximately 2400,- to 24.000 CZK).

According to Article 13, para. 1 of the Government Decree No. 137/2000, the limitation period for

imposing a fine for administrative offences is six months from the date on which the events took place.

According to Article 7 of the Government Decree No. 137/2000 a warning is „a communication orally

or in writing to the person responsible for committing the administrative offence regarding the social

undesirability of the acts which took place together with a recommendation to comply with the law“.

(See para. 11-23 of the judgment.)

Case C-54/07.