Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV

race discrimination | recruitment | public statement

The Advocate General has said 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 European Court of Justice (ECJ), including whether or not a public statement of a discriminatory recruitment policy constitutes direct discrimination contrary to the Race Directive.

The Advocate General, giving his opinion in advance of the ECJ decision, said that this type of discrimination is not excluded from the Race Directive. If it was excluded, employers would be able to differentiate very effectively between candidates on grounds of racial or ethnic origin simply by publicising the discriminatory character of their recruitment policy as overtly as possible beforehand.

However, the Advocate General went on to agree with the submissions of the UK and Ireland that the Race Directive was not intended to allow bodies such as the CGKR to bring public interest claims where no identifiable victim is making a discrimination complaint. But the Advocate General also pointed out that there is nothing to stop member states from granting additional rights to anti-discrimination bodies to bring legal action when they are not acting on behalf of a specific complainant.

The opinion is not binding on the ECJ, which is expected to make a final ruling later in 2008.

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

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