30.8.2008

Official Journal of the European Union

C 223/11

(Case C-54/07) (1)

(Directive 2000/43/EC - Discriminatory criteria for selecting staff - Burden of proof - Penalties)

(2008/C 223/17)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Centrum voor gelijkheid van kansen en voor racismebestrijding

Defendant: Firma Feryn NV

Re:

Preliminary ruling — Arbeidshof te Brussel — Interpretation of Articles 2(2)(a), 8(1) and 15 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) — Staff selection criteria that discriminate directly on grounds of racial or ethnic origin — Burden of proof — Appraisal and establishment by a national court — Whether the national court is, or is not, under an obligation to order that an end be put to the discrimination

Operative part of the judgment

1.The fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.

2.Public statements by which an employer lets it be known that under its recruitment policy 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 which is directly discriminatory within the meaning of Article 8(1) of Directive 2000/43. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking's actual recruitment practice does not correspond to those statements. It is for the national court to verify that the facts alleged are established and to assess the sufficiency of the evidence submitted in support of the employer's contentions that it has not breached the principle of equal treatment.

3.Article 15 of Directive 2000/43 requires that rules on sanctions applicable to breaches of national provisions adopted in order to transpose that directive must be effective, proportionate and dissuasive, even where there is no identifiable victim.

(1) OJ C 82, 14.4.2007.