I am delighted to have been invited by the International Olympic Academy to attend the beautiful opening ceremony that took place the day before yesterday and to give a lecture here at the prestigious site of Ancient Olympia.

I have at least three reasons to be happy. First, I studied Ancient Greek and Greek history for at least five years during my youth. Greece has given so much to our culture, our civilization. It is always a pleasure to come back to you, my Greek friends, and all the more so because it is my first time at the site of Ancient Olympia, although I fear that, unlike you, I am not and I shall never be a champion.

Second, even though I have been a Professor for more than 30 years and have taught students coming from many countries, especially those participating in programs financed by the European Union, I have never had such an international audience, such an international classroom with approximately 100 countries represented. I broke my own record today.

Third, I am pleased to draw the link between the Olympic Movement and the European Union. The European Union is currently composed of 28 Member-States, a number which may increase in the future. As Hilary Clinton said: “That’s the most beautiful adventure of the 20th century”. It is an American who has said that. It is sometimes difficult for Europeans to recognize the truth of that statement.

What is the common point between sports and law? What can they possibly have in common, an athlete throwing the discus or the javelin and a lawyer fighting with paper behind his or her desk or occasionally before the courts? What is the link, the common point between a geographical region and an international organization, such as the European Union, on the one hand, and a movement carrying an international message, as the Olympic Movement, on the other? There is a common point. It is the core values of the Olympic Movement embodied in the fundamental principles of Olympism and those of the European Union embodied in the founding Treaties and the new Charter of Fundamental Rights of the European Union.

Even if you are not all Europeans, remember that at the end of World War II in 1945, and due to its devastating consequences, for the first time for at least twenty centuries, some European leaders came to realize that it was imperative not to repeat the mistakes of the past. They had to invent something else to occupying and humiliating the defeated foes. This is the significance of a formative document, the Monnet-Schuman Declaration. Monnet and Schuman were two Frenchmen who in 1950 invented a new way of international governance, the rule of qualified majority replacing unanimity at international level, a supranational decision-making mechanism, as well as new institutions and a new legal order with an international judge, namely the Court of Justice, where I currently work.

The first concrete step in order to secure peace for the future was to place under common control the production of coal and steel, two materials which at the time were indispensable for warfare. This step was marked by the establishment, in 1952, of the European Coal and Steel Community and of the Common Market in 1957. In 1992, the European Union was established and European citizenship was introduced. European integration was further pursued through the introduction of the Euro and the gradual enlargement of the European Union, from six Member States to nine, ten (with Greece’s accession), twelve and fifteen. The Fall of the Berlin Wall allowed for the spreading of democracy, peace and prosperity in the countries forming the so-called “Eastern bloc”. Several countries in that former bloc acceded to the European Union in 2004, 2007 and 2013, raising the total number of Member States from 15 to 24, 27 and 28 respectively.

For the first time in history, we have a subcontinent in this part of the world. For the first time in history, we have no war between Member States. No war for 65 years; that is, for my own entire life, as I was born 65 years ago. But more importantly, not only do we not have any wars but we have also made the prospect of war unthinkable for the first time in our history. Growing up, I was not afraid of the prospect of another war in Belgium, a country whose nickname used to be “the battlefield of Europe”.

As Dr Bach said at the Opening Ceremony, “preservation of peace is also part and parcel of the Olympic Movement”. Yesterday, we spoke of perhaps the first important legal act in history, the Ancient Olympic Truce. If I were to compare the ancient Olympic Games with the modern United Nations, the Olympic Truce would be its first resolution. The effect of the ancient Olympic Truce was to stop hostilities during the Olympic Games. This Truce has yet to be achieved today.

According to the second fundamental principle of Olympism, “the goal of Olympism is to place sport at the service of the harmonious development of humankind, with the view of promoting a peaceful society concerned with the preservation of human dignity”. As Dr Bach said, “the Olympic ideals are powerful values and society’s tools for the education of youth towards a harmonious and peaceful future”.

Peace however is not easy to achieve. Of course, it is not possible to speak here today about all aspects of the preservation of peace. I am going to address one particular and very important aspect, namely respect for diversity and the prohibition of discrimination. In European Union law, in the Treaties and in the Charter of Fundamental Rights, there is a general prohibition of discrimination. I would draw your attention to articles 18, 19 of the Treaty of the European Union and article 21 of the Charter. There are many similarities between these texts and the Olympic Charter. According to the fourth principle of the Olympic Movement, “the practice of sport is a human right”. According to the sixth fundamental principle, “any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement”.

I am now going to give you some examples of EU law’s fight against discrimination. These examples are taken from the case-law, that is from the decisions of the European Court of Justice, which are binding in the 28 Member States of the European Union representing 500,000,000 citizens.

In none of the texts that I have quoted, will you find a definition of discrimination. There is no need of definition as several centuries ago, Aristotle explained what discrimination is. In his terms, discrimination is to treat differently persons who are in the same situation or to treat in the same way persons who are in different situations. In the texts that I have quoted, the EU texts as well as those of the Olympic Movement, you have a list of grounds of discrimination. The list of such grounds contained in the EU texts is a bit longer, but that is not the important point. The two lists of the grounds of discrimination, of the European Union on the one side and of the Olympic Movement on the other, do not seek to be exhaustive. For example, European Union law refers to “any discrimination based on any grounds such as [...]”. The Olympic texts refer to discrimination “on the basis of nationality, politics, gender or otherwise”. The wording of the texts thus implies that there are other possible grounds of discrimination.

Discrimination can be direct or indirect. Take, for example, discrimination on the ground of nationality. A provision according to which certain jobs are reserved for Belgians only would constitute an example of direct discrimination. However, if that provision were to provide that certain jobs are reserved to people born in Belgium, whose parents were born in Belgium and whose grandparents were also born in Belgium, it would not directly discriminate on the basis of nationality. The text is ostensibly free of discrimination but the result is exactly the same because there is a 95% chance that the people described in that provision are Belgian nationals. That is also discrimination, albeit an indirect one.

A few other examples drawn from the case-law of the Court which address some of the possible grounds of discrimination will give me the opportunity to briefly present the facts of these cases and to explain to you the decision of the Court.

First of all, discrimination based on race, colour or ethnic origin is prohibited. Europe has known this type of discrimination. A whole range of racist measures, culminating in the Holocaust, were adopted in Europe. The Olympic Movement itself was confronted with this type of discrimination. Let us remember the attempts of Adolf Hitler to use the Olympic Movement to serve the ideology of the German National Socialist Party. Let us also recall the exclusion of black athletes from the South African teams during the years of the apartheid. This ground of discrimination is rarely invoked before the European Court of Justice, but I have found two examples that I will present to you. The first one dates from 2008 and it is known as the Feryn case (Feryn, C 54/07, EU:C:2008:397).1 Feryn is a Belgian company specialized in the installation of security doors. It made a statement according to which it was not going to recruit immigrants, because its customers would be reluctant to give them access to their homes. The case was referred to the Court of Justice on the basis of a complaint lodged before the Belgian courts by a Belgian NGO. The Irish and UK governments, which intervened in the proceedings, argued that the prohibition of discrimination was not applicable to this case because the discrimination was only in the statement made by Feryn and was not found on facts. There was no identifiable victim or complainant. The Court of Justice rejected that argument holding that there is discrimination because Feryn’s statement was sufficiently clear to discourage certain people from applying for the jobs concerned.

Of course, it is not always easy to prove discrimination. I will give you another example where the victim was, as is regrettably often the case, a woman (Meister, C 415/10, EU:C:2012:217).2 Ms Meister, who has a German surname, is a Russian national holding a Russian degree in systems engineering. She immigrated to Germany, where she had her degree recognized and applied there for a job twice. However, she never received an answer, she was never invited to an interview and, of course, she was not recruited. She requested the employer to explain to her why she had not been invited for an interview but received no answer. She appeared before a German judge and requested to have access to the confidential information of the company, to see whether somebody else had been recruited and, if so, on which ground he or she has been recruited while her application had been unsuccessful. The case was referred to the Court which held that Ms Meister did not have the right to have access to this information and that the employer was not obliged to give it to her. However, the Court concluded that if the employer refused to give any information regarding the reasons for which a candidate’s application was unsuccessful, that would compromise the prohibition of discrimination. The Court thus considered that such a refusal would give rise to a presumption in favour of the existence of discrimination.

Another ground of discrimination is that based on gender and sex. That is probably one of the most important aspects of the Court’s case-law, because the prohibition of this kind of discrimination was inserted in the European Treaties as early as 1957. The Olympic Games were also confronted with discrimination based on sex. In antiquity, women were excluded from attending, let alone participating in, the Olympic Games. However, as I learnt yesterday while visiting the archaeological site of Olympia, there was a way for women to score a victory in the ancient Olympic Games. Women could not participate as athletes, but they could be the owners of a horse or a chariot that participated and scored a victory in the Games. That was a very indirect way for women to become Olympic champions. No woman took part in the first Modern Games of 1896 and it was only progressively that women were admitted in the Olympic Games, on a sport by sport basis. As Dr Bach mentioned the day before yesterday, the 2010 Olympic Games of London was the first time that every country sent to the Olympic Games a team composed of both men and women.

In the case-law of the Court of Justice, the first judgment on this kind of discrimination dates from 1975 with the judgment in the Defrenne case (Defrenne, 43/75, EU:C:1976:56).3 Ms Defrenne was an air hostess employed by the Belgian national airline of the time “Sabena”. She had complained that her male steward colleagues received a higher salary, although their work was exactly the same as hers. The Court ruled in favour of equal pay for equal work and that men and women should be treated equally. “Sabena” was thus required to accord Ms Defrenne the same treatment as her male colleagues.

Let me give you a few additional examples. In 1980, Ms Jenkins, an employee working part-time for a UK manufacturer of women’s clothing, complained that her salary was lower than that of the male full-time workers. The Court ruled that a difference of salary based only on hourly rates does not constitute discrimination. However, according to the Court, such difference would amount to indirect discrimination if it were an indirect way of reducing the salary of part-time workers on the ground that this group of workers was predominately or exclusively composed of women.

The same solution was adopted in Rinner-Kühn (171/88, EU:C:1989:328)4 and Megner and Scheffel (C 444/93, EU:C:1995:442),5 where the part-time workers, made up almost exclusively of women, were excluded from sickness insurance and old age benefits. It may have been pure chance that part-time workers only consisted of women, but that did not preclude the existence of indirect discrimination. Even though the difference in treatment was not directly based on sex, but on whether the employee worked part-time or fulltime, the reality was that all of the part-time workers were women and it was practically impossible for women to be recruited as full time workers because of their family commitments.

Of course, there are certain positions for which sex can be decisive. As people in the military are probably aware, sex can be used as a decisive criterion for recruitment purposes. The Court of Justice has recognized that exception for male-only and women-only prisons (Commission v France, 318/86, EU:C:1988:352),6 as well as police officers intervening in serious internal disturbances (Johnston, 222/84, EU:C:1986:206).7 The Court has also made this exception for the UK Royal Marines (Sirdar, C 273/97, EU:C:1999:523),8 because they are in the front line of attack, thereby requiring special training at which men fare better than women. In such a case, the Court ruled that it would be justified to recruit only men.

In 2000, Ms Kreil was recruited by the German army, the Bundeswehr. At that time, women could not be recruited to positions involving the use of weapons. Ms Kreil, who had applied for a position in weapon-electronics maintenance, considered this discriminatory. Germany sought to justify that discrimination on the basis that it concerned national defence, an area in which the European Union could not intervene. The Court of Justice (Kreil, C 285/98, EU:C:2000:2)9 rejected Germany’s arguments holding that positions in the army constitute employment as women could be employed in German Army kitchens or bands. In such circumstances the Court ruled that a general exclusion of women from positions involving weapons amounted to discrimination.

Equality of sex also applies to transsexuals. I am referring to the P v S case (P. v S., C 13/94, EU:C:1996:170).10 Mr P was dismissed from his position as manager after undergoing a gender reassignment operation. The Court ruled that his dismissal amounted to discrimination based on sex.

I will refer to two more grounds of discrimination. The first one is discrimination based on disability. The fight against discrimination based on disability is well known to the Olympic Movement. This is in fact the reason for the birth of the Paralympic Movement which has allowed athletes suffering from various disabilities to participate in the Olympic Games, since 1960.

What constitutes disability? There is no definition in the statutes of the Paralympic Movement, except that the athlete in question has to suffer from an impairment which is included in a list of 10 eligible types of impairment, such as impaired muscle power, leg length difference, vision impairment and intellectual impairment. The definition of disability given by the Court of Justice is broader. According to its case-law, disability is “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life” (Chacón Navas, C 13/05, EU:C:2006:456).11 It is interesting to note that in the Court’s case-law, the prohibition of discrimination based on disability does not only apply to the disabled person, but also to the principle caretaker of such a person. Thus the prohibition of discrimination has been applied, for example, to the mother of a disabled child who had to accept voluntary redundancy because her employer was unwilling to accommodate her need to have time off work in order to attend to her disabled child (Coleman, C 303/06, EU:C:2008:415).12

Finally, the last ground of discrimination I would like to address, and the most recent one in the Court’s case-law, is discrimination based on sexual orientation. That kind of discrimination is, like the previous ones, also not unknown in the world of sports. I recall in particular the recent debate in relation to the 2014 Winter Olympic Games that were held in Sochi. This time my example from the Court’s case-law comes from the field of sports. I am referring to the Accept case (Asociatia Accept, C 81/12, EU:C:2013:275)13 in which the Court handed down its judgment in 2013. That case concerned a complaint lodged by a Romanian NGO against Steaua Bucuresti, a well- known Romanian football club, and more particularly against its principal shareholder, Mr Becali. In an interview, the latter stated that his football club would never recruit a homosexual player even if he would have to close the club. The statement was clear and the Court had to decide whether such a statement amounted to discrimination on the basis of sexual orientation. The football club argued that the statement was made by the shareholder and that it cannot be held responsible for those statements, as the shareholder is not the coach and has no say in the recruitment of the players. The Court did not find that argument particularly credible. It ruled that the football club should have distanced itself from that statement. The Court also rejected the club’s second argument according to which, in a similar fashion to the Feryn case I referred to earlier, there were no negotiations with any homosexual player so that no one had actually been affected by that statement. As in the Feryn case, the Court considered that the lack of concrete negotiations affected by the statement in question did preclude the fact that the statement, once again, was sufficient to discourage candidates from applying for a position at the club.

In conclusion, you have seen that all the cases that I have addressed today range over a significant period of time, the oldest one dating back to 1975 and the most recent one from 2013.

Mr President, Mr Kouvelos, the day before yesterday you quoted Pierre de Coubertin and I liked that quote. “Olympism is the destroyer of dividing walls. It calls for air and light”. I would add, if I may, to Pierre de Coubertin’s statement, that Olympism has to remain the destroyer of dividing walls because in our world there is nothing easier than to have war again and the destruction that would come with it. I would say to the young Olympians present here today that when you go back to your countries, defend peace, democracy and diversity. Defend the prohibition of discrimination, whose protection you enjoy. Plan your lives and face the challenges that life will bring to you, but do not forget that the fight against discrimination is a day-to-day fight. Democracy is a day-to-day challenge. No war against discrimination and in favour of diversity and democracy is won once and forever. Democracy is not a gift, but remains a challenge, your challenge.

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WATHELET Melchior, "Non-Discrimination: The common principle between the European Union Charter of Fundamental Rights and the Olympic Charter", in: K. Georgiadis(ed.), Olympic values: Respect for diversity, 54th International Session for Young Participants (Ancient Olympia, 15-29/6/2014), International Olympic Academy, Athens, 2015, pp.65-75.

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