Opinion of the Advocate General — ECLI:EU:C:2008:155
Date: 2008-03-12
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Community law – Principles – Equal treatment – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43 (Council Directive 2000/43, Art. 2(2)(a)) 2. Community law – Principles – Equal treatment – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43 (Council Directive 2000/43, Art. 8(1)) 3. Community law – Principles – Equal treatment – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43 (Council Directive 2000/43, Art. 15) 1. 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 Article 2(2)(a) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The existence of such direct discrimination is not dependent on the identification of a complainant who claims to have been the victim of that discrimination. (see paras 25, 28, operative part 1) 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 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 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. (see para. 34, operative part 2) 3. Article 15 of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin 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. (see para. 40, operative part 3)