CYIL 2014

234

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.

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

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

judgment).