| DISCRIMINATION — Race — Employment — Public statement of recruitment policy containing racial bias — No identifiable complainant — Whether discrimination under Community Directive — Possibility for employer to prove no breach of equal treatment principle — Sanctions for breach — Council Directive 2000/43/EC, arts 2(2)(a), 8(1), 15
Centrum voor gelijkheid van kansen en voor racismbestrijding v Firma Feryn NV (Case C-54/07); [2008] WLR (D) 234
ECJ: President of Chamber Timmermans, Judges Bay Larsen, Schiemann, Makarczyk and Bonichot: 10 July 2008
Public statements that persons of particular racial origins were not acceptable as candidates for an employment post prima facie constituted direct discrimination for the purposes of Directive 2000/43 on equal treatment between persons irrespective of racial or ethnic origin, even if no particular complainant could be identified, but it was open to the employer to establish that no infringement of the principle of equal treatment was involved.
The Second Chamber of the Court of Justice of the European Communities so held, inter alia, on a preliminary reference by the Arbeidshof te Brussel.
After the defendant, a door manufacturer and installer in Belgium, had made public statements to the effect that posts as door fitters offered by it were not open to “immigrants”, the claimant, an equal opportunities and anti-racism body, brought an action alleging race discrimination, but the action was dismissed on the ground that it had not been shown that any particular person had been discriminated against. On appeal by the claimant, a reference was made to the European Court for a preliminary ruling on the scope of Directive 2000/43, and the burden of proof and sanctions.
THE COURT said that although art 2(2)(a) of Directive 2000/43 defined direct discrimination as occurring where “one person is treated less favourably than another … in a comparable situation”, it would be contrary to the objective of the Directive, namely, to foster conditions for a socially inclusive labour market, to limit the scope of the Directive to cases where an unsuccessful candidate for an employment post had brought proceedings against the employer. Accordingly, there was also prima facie direct discrimination where a public statement had been made that employees of a certain ethnic or racial origin would not be considered, even if no particular complainant could be identified. Art 8(1) of the Directive provided that where there were facts from which discrimination could be presumed, it was for the defendant to prove that there had been no breach of the principle of equal treatment. Thus, in the case of a statement by an employer that its policy was not to recruit certain racial/ethnic-type persons, the employer could show that it had not breached the principle of equal treatment by, for example, proving that its actual recruitment practice did not correspond to that stated policy. National sanctions, provided for by art 15 of the Directive, for breach of anti-discrimination provisions, which had to be effective, dissuasive and proportionate, could include a declaration of discrimination accompanied by publicity, an injunction accompanied if appropriate by a fine, or an award of damages.
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