# C_2007082EN.01002102.xml

| 14.4.2007 | EN | Official Journal of the European Union | C 82/21 |
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14.4.2007

EN

Official Journal of the European Union

C 82/21

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Reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium) lodged on 6 February 2007 — Centrum voor gelijkheid van kansen en voor racismebestrijding v NV Firma Feryn

(Case C-54/07)

(2007/C 82/39)

Language of the case: Dutch

Referring court

Arbeidshof te Brussel

Parties to the main proceedings

Appellant: Centrum voor gelijkheid van kansen en voor racismebestrijding

Appellant:

Respondent: NV Firma Feryn

Respondent:

Questions referred

| — | Is there direct discrimination within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC (1) of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin where an employer, after putting up a conspicuous job vacancy notice, publicly states:

  ‘I must comply with my customers' requirements. If you say “I want that particular product or I want it like this and like that”, and I say “I'm not doing it, I'll send those people”, then you say “I don't need that door”. Then I'm putting myself out of business. We must meet the customers' requirements. This isn't my problem. I didn't create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? — I must do it the way the customer wants it done!’? |
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Is there direct discrimination within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC (1) of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin where an employer, after putting up a conspicuous job vacancy notice, publicly states:

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‘I must comply with my customers' requirements. If you say “I want that particular product or I want it like this and like that”, and I say “I'm not doing it, I'll send those people”, then you say “I don't need that door”. Then I'm putting myself out of business. We must meet the customers' requirements. This isn't my problem. I didn't create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? — I must do it the way the customer wants it done!’?

| — | Is it sufficient for a finding of direct discrimination in the conditions for access to paid employment to establish that the employer applies directly discriminatory selection criteria? |
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Is it sufficient for a finding of direct discrimination in the conditions for access to paid employment to establish that the employer applies directly discriminatory selection criteria?

| — | For the purpose of establishing that there is direct discrimination 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, may account be taken of the recruitment of exclusively indigenous fitters by an affiliated company of the employer in assessing whether that employer's recruitment policy is discriminatory? |
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For the purpose of establishing that there is direct discrimination 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, may account be taken of the recruitment of exclusively indigenous fitters by an affiliated company of the employer in assessing whether that employer's recruitment policy is discriminatory?

| — | What is to be understood by ‘facts from which it may be presumed that there has been direct or indirect discrimination ’within the terms of Article 8(1) of the Directive? How strict must a national court be in assessing facts which give rise to a presumption of discrimination?






  (a) | To what extent do earlier acts of discrimination (public announcement of directly discriminatory selection criteria in April 2005) constitute ‘facts from which it may be presumed that there has been direct or indirect discrimination ’within the terms of Article 8(1) of the Directive? |
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What is to be understood by ‘facts from which it may be presumed that there has been direct or indirect discrimination ’within the terms of Article 8(1) of the Directive? How strict must a national court be in assessing facts which give rise to a presumption of discrimination?

(a)

To what extent do earlier acts of discrimination (public announcement of directly discriminatory selection criteria in April 2005) constitute ‘facts from which it may be presumed that there has been direct or indirect discrimination ’within the terms of Article 8(1) of the Directive?

| (b) | Does an established act of discrimination in April 2005 (public announcement in April 2005) subsequently give rise to a presumption of the continuation of a directly discriminatory recruitment policy? Having regard to the facts in the main proceedings, is it sufficient, in order to raise the presumption (that an employer operates and continues to pursue a discriminatory recruitment policy) that, in April 2005, in answer to the question whether, as an employer, he did not treat people from foreign and indigenous backgrounds in the same manner and was thus actually a bit racist, he publicly stated: ‘I must comply with my customers' requirements. If you say “I want that particular product or I want it like this and like that”, and I say “I'm not doing it, I'll send those people”, then you say “I don't need that door”. Then I'm putting myself out of business. We must meet the customers' requirements. This isn't my problem. I didn't create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? — I must do it the way the customer wants it done!’? |
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(b)

Does an established act of discrimination in April 2005 (public announcement in April 2005) subsequently give rise to a presumption of the continuation of a directly discriminatory recruitment policy? Having regard to the facts in the main proceedings, is it sufficient, in order to raise the presumption (that an employer operates and continues to pursue a discriminatory recruitment policy) that, in April 2005, in answer to the question whether, as an employer, he did not treat people from foreign and indigenous backgrounds in the same manner and was thus actually a bit racist, he publicly stated: ‘I must comply with my customers' requirements. If you say “I want that particular product or I want it like this and like that”, and I say “I'm not doing it, I'll send those people”, then you say “I don't need that door”. Then I'm putting myself out of business. We must meet the customers' requirements. This isn't my problem. I didn't create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? — I must do it the way the customer wants it done!’?

| (c) | Having regard to the facts in the main proceedings, can a joint press release issued by an employer and the national body for combating discrimination, in which acts of discrimination are at least implicitly confirmed by the employer, give rise to such a presumption? |
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(c)

Having regard to the facts in the main proceedings, can a joint press release issued by an employer and the national body for combating discrimination, in which acts of discrimination are at least implicitly confirmed by the employer, give rise to such a presumption?

| (d) | Does the fact that an employer does not employ any fitters from ethnic minorities give rise to a presumption of indirect discrimination when that same employer some time previously had experienced great difficulty in recruiting fitters and, moreover, had also stated publicly that his customers did not like working with fitters from ethnic minorities? |
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(d)

Does the fact that an employer does not employ any fitters from ethnic minorities give rise to a presumption of indirect discrimination when that same employer some time previously had experienced great difficulty in recruiting fitters and, moreover, had also stated publicly that his customers did not like working with fitters from ethnic minorities?

| (e) | Is one fact sufficient in order to raise a presumption of discrimination? |
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(e)

Is one fact sufficient in order to raise a presumption of discrimination?

| (f) | Having regard to the facts in the main proceedings, can a presumption of discrimination on the part of the employer be inferred from the recruitment of exclusively indigenous fitters by an affiliated company of that employer? |
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(f)

Having regard to the facts in the main proceedings, can a presumption of discrimination on the part of the employer be inferred from the recruitment of exclusively indigenous fitters by an affiliated company of that employer?

| — | How strict must the national court be in assessing the evidence in rebuttal which must be produced when a presumption of discrimination within the meaning of Article 8(1) of the Directive has been raised? Can a presumption of discrimination within the meaning of Article 8(1) of the Directive in question be rebutted by a simple and unilateral statement by the employer in the press that he does not or does not any longer discriminate and that fitters from ethnic minorities are welcome; and/or by a simple declaration by the employer that his company, excluding the sister company, has filled all vacancies for fitters and/or by the statement that a Tunisian cleaning lady has been taken on and/or, having regard to the facts in the main proceedings, can the presumption be rebutted only by actual recruitment of fitters from ethnic minorities and/or by fulfilling commitments given in the joint press release? |
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How strict must the national court be in assessing the evidence in rebuttal which must be produced when a presumption of discrimination within the meaning of Article 8(1) of the Directive has been raised? Can a presumption of discrimination within the meaning of Article 8(1) of the Directive in question be rebutted by a simple and unilateral statement by the employer in the press that he does not or does not any longer discriminate and that fitters from ethnic minorities are welcome; and/or by a simple declaration by the employer that his company, excluding the sister company, has filled all vacancies for fitters and/or by the statement that a Tunisian cleaning lady has been taken on and/or, having regard to the facts in the main proceedings, can the presumption be rebutted only by actual recruitment of fitters from ethnic minorities and/or by fulfilling commitments given in the joint press release?

| — | What is to be understood by an ‘effective, proportionate and dissuasive ’sanction, as provided for in Article 15 of Directive 2000/43/EC?
  Having regard to the facts in the main proceedings, does the abovementioned requirement of Article 15 permit the national court merely to declare that there has been direct discrimination?
  Or does it, on the contrary, also require the national court to grant a prohibitory injunction, as provided for in national law? Having regard to the facts in the main proceedings, to what extent is the national court further required to order the publication of the forthcoming judgment as an effective, proportionate and dissuasive sanction? |
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What is to be understood by an ‘effective, proportionate and dissuasive ’sanction, as provided for in Article 15 of Directive 2000/43/EC?

Having regard to the facts in the main proceedings, does the abovementioned requirement of Article 15 permit the national court merely to declare that there has been direct discrimination?

Or does it, on the contrary, also require the national court to grant a prohibitory injunction, as provided for in national law? Having regard to the facts in the main proceedings, to what extent is the national court further required to order the publication of the forthcoming judgment as an effective, proportionate and dissuasive sanction?

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(1)  OJ L 180, p. 22.

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