MINELRES: ERT: ECJ judgment on discriminatory criteria for staff recruitment

minelres@lists.microlink.lv minelres@lists.microlink.lv
Tue Jul 22 15:16:10 2008

Original sender: Equal Rights Trust <equalrightstrust1@response.pure360.com>

Discrimination without an actual victim in ECJ judgment  
London, 15 July 2008  
On 10 July 2008, the European Court of Justice handed down the judgment
in the case of Centrum voor gelijkheid van kansen en voor
racismebestrijding v. Firma Feryn NY (Case C-54/07). The judgment
interprets the meaning of direct discrimination based on Article 2 (2)
(a) of Council Directive 2000/43/EC of 29 June 2000 relating to the
principle of equal treatment between persons irrespective of racial or
ethnic origin.  

The case involved an application by the Belgian national equality body,
the Centre for Equal Opportunities and Opposition to Racism (Centrum
voor gelijkheid van kansen en voor racismebestrijding), which claimed
that Feryn, a Belgian sales and installation company, had applied a
discriminatory recruitment policy, following public statements made by
its director regarding the recruitment of immigrants. 

The President of the Labour Court of Brussels (Voorzitter van de
arbeidsrechtbank te Brussel) dismissed the case on the grounds that
there was no proof nor was there a presumption that a person had applied
for a job and had not been employed as a result of his ethnic origin.
The applicant appealed to the Labour Court of Brussels (Arbeidshof te
Brussel), which stayed the proceedings and referred six questions to the
European Court of Justice seeking clarification on issues including the
concept of direct discrimination and the burden of proof within Council
Directive 2000/43/EC of 29 June 2000. 

In its judgment the Court set out that under Council Directive
2000/43/EC direct discrimination could be found on the basis of
statements made by an employer and that it was not necessary for there
to be a victim per se. It stated: 

“The fact that an employer declares publicly that it will not recruit
employees of a certain ethnic or racial origin, something which is
clearly likely to strongly dissuade certain candidates from submitting
their candidature and, accordingly, to hinder their access to the labour
market, constitutes direct discrimination in respect of recruitment
within the meaning of Directive 2000/43. The existence of such direct
discrimination is not dependant on the identification of a complainant
who claims to have been the victim.” 

The Court then went on to address the issue of burden of proof under
Article 8(1) of the Directive, providing that where there are
established facts from which it may be presumed that there has been
direct or indirect discrimination, it is for the defendant to prove
there has been no breach of the principle of equal treatment. The Court
held that statements by an employer indicating he will not employ
persons of an ethnic origin create a presumption of discrimination. 

The judgment clarifies the concept of direct discrimination under
Article 2 (2)(a) of Council Directive 2000/43/EC. 

To view ERT case summary click here

To view the full text of the case click here

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