CYIL 2014

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EUROPEAN ANTIǧDISCRIMINATION LAWAND THE LEGAL STATUS OF PROFESSIONAL ATHLETES

from the problematic statements, respectively a publicly declared anti-discrimination

policy of the employer.

At this point, the reader of the judgment can hardly resist the impression that the

cat is biting its own tail. The employer shall, at the first opportunity, publicly distance

himself from statements which could be attributable to him due to some general

impression. But if he really acted like this, surely, according to the ECJ there would be

no discrimination, and it would be pointless to address the issue of the reversal of the

burden of proof.

4.4 On the dissuasive effect of the sanction

After the ECJ had solved the problems regarding the responsibility of FC Steaua

and the application of the burden of proof, it dealt quite extensively with the question

of whether the warning against Mr. Becali under Romanian law constitutes an effective

sanction within the meaning and spirit of Article 17 of the Directive 2000/78/

ES. Citing from its relevant case law the ECJ recalled that sanctions should be

proportionate to the seriousness of the breach and ensure deterrent effect. National

authorities should also take into account the principle of proportionality. Symbolic

sanctions, obviously, do not meet these criteria.

On the other hand, the sanction of a warning, as regulated in the Romanian

legislation, cannot be automatically considered to be a symbolic penalty. According

to the ECJ, this applies in particular in a case when the warning is associated with

considerable publicity and facilitates further proceedings to obtain compensation for

damages by victims of discrimination. However, some irritation might be caused by

a regulation in Romanian law according to which the limitation period for imposing

a financial sanction for administrative offences is six months from the date on which

the events took place, completely regardless of the length of proceedings. The six-

month period runs from the date when the alleged discrimination occurred, even in

case that the actual complaint was filed only six months after the incident.

Finally, the ECJ left the specific assessment of the effectiveness and adequacy of

the penalty, like in other similar cases, for the national court.

5. The continuation of the case before the Court of Appeal

From the text of the judgment it appears that the case of the organization Accept

received considerable support from the ECJ. However, when the case continued

before the Bucharest Court of Appeal, the case took a surprising turn in favor of the

Consiliul National and indirectly in favor of FC Steaua. On 23 December 2013 the

Court of Appeal dismissed the action of Accept as unfounded.

Curtea de Apel București, Dosar nr. 12562/2010 (judgment of 23 December 2013). I want to thank

the organization Accept and the Austrian Embassy in Romania for the provision of the judgment in

the Romanian language. For help with the translation of the judgment from Romanian to the Czech

language my special thanks belong to Petra Mendlová. For brief information about the judgment in

English, see Report of the European Network of Legal Experts in the non-discrimination field of