NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford

NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford case is a 2020 case of the Court of Justice of the European Union that provides insights into the application of Directive 2000/78 (Employment Equality Directive) in addressing homophobic speech in employment. While affirming established principles, the Court’s ruling also highlights the complexities of balancing freedom of expression with the protection of LGBT individuals from discrimination.

Case background

NH, a senior lawyer at an Italian law firm, sparked controversy during a radio interview in Italy when he declared his refusal to hire gay individuals or utilize their services. Although there was no ongoing recruitment at the time, NH's remarks prompted legal action from the Associazione Avvocatura per i diritti LGBTI – Rete Lenford (the Associazione), an Italian association defending LGBTI rights, alleging discrimination under Italian legislation implementing Directive 2000/78.

The Tribunale di Bergamo found NH guilty of discrimination and ordered him to publish an apology, devise an anti-discrimination action plan, and pay damages to the Associazione. NH appealed to higher courts, ultimately leading to the Corte suprema di cassazione staying proceedings and referring two questions to the CJEU.

The questions focused on the interpretation of Directive 2000/78 and concerned the material scope of this instrument, as well as the eligibility of a lawyers’ association to initiate legal action in similar circumstances. The first question asked whether Article 9(2) of the Directive implied that in the absence of an identifiable victim, an association like the Associazione could be recognized as a representative entity, thereby automatically possessing the right to bring legal proceedings to uphold the directive's prohibition. The second question addressed whether homophobic statements, like those under scrutiny in the case, fell within the Directive's scope, notwithstanding their lack of connection to ongoing or planned recruitment processes by the individual making the statements.

Opinion of Attorney General

“Έπεα πτερόεντα, words have wings. The meaning of that expression, the origins of which can be traced back to Homer is twofold: that words fly away, carried by the wind; but also that words travel fast and spread quickly.