Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV C-54/07 ECJ

race discrimination | recruitment | public statement

The European Court of Justice (ECJ) has held that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive (2000/43/EC).

Belgian newspapers published interviews with a director of a door-fitting firm that was advertising vacancies. The director was reported to have said that his firm would not recruit persons of Moroccan origin because customers did not trust them, although he later denied that he had made the statements.

The Belgian anti-discrimination body Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (CGKR) brought proceedings seeking a declaration that the employer had contravened Belgian legislation that implemented the Race Directive. The CGKR also asked the court to make an order that the employer end its discriminatory recruitment policy.

The court held that the public statements in question did not constitute acts of discrimination. They were merely evidence of potential discrimination, in that they indicated that persons of a certain racial or ethnic origin would not be recruited by the employer if they decided to apply. The CGKR had neither claimed nor demonstrated that the employer had ever actually turned down a job application on grounds of the applicant's racial or ethnic origin. On appeal, a number of questions were referred to the ECJ, including whether or not a public statement of a discriminatory recruitment policy constitutes direct discrimination contrary to the Race Directive.

The ECJ found that the Directive's objective of fostering conditions for a socially inclusive labour market would be hard to achieve if its scope were limited to those cases in which an unsuccessful candidate for a post, considering that he or she was the victim of direct discrimination, brought legal proceedings against the employer. The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, a practice that is clearly likely strongly to dissuade certain candidates from applying and hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of the Race Directive. The existence of such direct discrimination does not depend on the identification of an individual who claims to have been the victim.

The ECJ went on to say that, while Article 7 of the Race Directive requires member states to make legal procedures available to individuals who consider that they have suffered discrimination, these are only minimum requirements. The Directive does not preclude member states from introducing or maintaining more favourable provisions. More favourable provisions could be the right for associations with a legitimate interest in ensuring compliance with the Directive, such as the CGKR, to bring legal or administrative proceedings to enforce the obligations resulting from the Directive in the absence of an identifiable complainant. However, it is solely for national courts to assess whether or not national legislation allows such a possibility.

Public statements by which an employer lets it be known that it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy that is directly discriminatory within the meaning of the Race Directive. It would then be for that employer to prove that there was no breach of the principle of equal treatment, for example by showing that its actual recruitment practices do not correspond to those statements.

Case transcript of Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (on the ECJ website)

Go to HR & Compliance Centre case law stop press.