Case C-54/07: 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
Date: 2007-04-14
Institutions: Court of Justice
Subjects: equal treatment, interpretation of the law, job access, penalty, racial discrimination, recruitment

14.4.2007

EN

Official Journal of the European Union

C 82/21

3. The CFI erred in law in holding that (i) the Appellant cannot
be said to have acted benevolently, (ii) the Commission was
able to manage the project itself, and (iii) there is a require-
ment that a person claiming under the principle of nego-
tiorum gestio must necessarily act without the knowledge of
the principal.

4. The CFI's findings on the pleas of unjust enrichment and
negotiorum gestio on the one hand, and the plea of legitimate
expectations on the other hand, are inconsistent.

5. In rejecting the Appellant's claim based on negligence or
fault liability, the CFI erred in considering that insufficient
argument had been adduced by the Appellant, given that the
matter speaks for itself on the facts of this case in the par-
ticular
the Commission exercises
powers of recovery under the Financial Regulation.

circumstances where

6. The CFI erred in holding (i) that there was no evidence
before the Court to prove that the assurances relied upon by
the Appellant were communicated at
the meeting of 2
October 1998 and (ii) that it was highly unlikely that such
assurances were communicated.

7. The CFI erred in law in holding that

the Commission's
failure to make a note of the meeting of 2 October 1998
established the informality of that meeting and, from this
the
it erroneously discounted the possibility of
error,
Commission having communicated such assurances by one
means or another. Further,
the CFI wrongly took into
account the manner by which the assurances were conveyed,
and erroneously failed to take into account
the proper
context, namely a context in which the Commission had
committed itself to do no more than pay for work done
pursuant to a properly constituted contractual specification,
and for which the Commission already had a budget.

(1) OJ L 356, p. 1.

Reference for a preliminary ruling from the Cour d'Appel
de Liège (Belgium) lodged on 5 February 2007 — Belgian
State v Les Vergers du Vieux Tauves SA

Parties to the main proceedings

Applicant: Belgian State

Defendant: Les Vergers du Vieux Tauves SA

Question referred

Is the Law of 28 December 1992, which amended the wording
of Article 202 of the 1992 Code of Taxation on Income by
referring to Directive 90/435/EEC (1) and required that the bene-
ficial owner of dividends have a holding of capital
in the
Company which distributed such dividend, in as much as that
Law does not explicitly specify that the holding must be as full
owner and therefore implicitly permits the interpretation made
by the respondent, that the mere holding of a right of usufruct
of shareholdings in the capital carries the right to tax exemption
on such dividends, compatible with the provisions of that Direc-
tive concerning holdings in capital, and in particular with its
Articles 3, 4 and 5?

(1) Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member States (OJ L 225, p. 6).

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

(Case C-48/07)

(2007/C 82/38)

Language of the case: French

Referring court

Arbeidshof te Brussel

Parties to the main proceedings

Referring court

Appellant: Centrum voor gelijkheid van kansen en voor racisme-
bestrijding

Cour d'Appel de Liège

Respondent: NV Firma Feryn

C 82/22

EN

Official Journal of the European Union

14.4.2007

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
the customers'
myself out of business. We must meet
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
selection
criteria?

applies directly discriminatory

employer

— For the purpose of establishing that there is direct discrimi-
nation 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 recruit-
ment of exclusively indigenous
fitters by an affiliated
company of the employer in assessing whether that employ-
er'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 discrimina-
tion’ 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
‘I must
thus actually a bit racist, he publicly stated:
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 custo-
mers' 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?

(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?

(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?

— What is to be understood by an ‘effective, proportionate and
dissuasive’ sanction, as provided for in Article 15 of Direc-
tive 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?

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Official Journal of the European Union

C 82/23

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?

(1) OJ L 180, p. 22.

Action brought on 9 February 2007 — Commission of the
European Communities v Italian Republic

(Case C-69/07)

(2007/C 82/41)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Rechhia and J.-B. Laignelot, acting as Agents)

Defendant: Italian Republic

Forms of order sought

— Declare that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Directive
2003/35/EC of the European Parliament and of the Council
of 26 May 2003 providing for public participation in
respect of the drawing up of certain plans and programmes
relating to the environment and amending with regard to
public participation and access to justice Council Directives
85/337/EEC and 96/61/EC (1), the Italian Republic has failed
to fulfil its obligations under Article 6 of that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit
expired on 25 June 2005.

for

transposition of Directive 2003/35/EC

(1) OJ 2003 L 156, p. 17.

Reference for a preliminary ruling from the Högsta
lodged on 12 February 2007 —
domstolen (Sweden)

Kerstin Sundelind Lopez v Miquel Enrique Lopez Lizazo

(Case C-68/07)

(2007/C 82/40)

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicant: Kerstin Sundelind Lopez

Defendant: Miquel Enrique Lopez Lizazo

Question referred

The respondent in a case concerning divorce is neither resident
in a Member State nor a citizen of a Member State. May the
case be heard by a court in a Member State which does not
have jurisdiction under Article 3 (1) [of the Brussels II Regu-
lation], even though a court in another Member State may have
jurisdiction by application of one of the rules on jurisdiction set
out in Article 3?

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Asturias
lodged on
9 February 2007 — José Manuel Blanco Pérez and Maria
del Pilar Chao Gómez v Consejería de Salud y Servicios
Sanitarios

(Spain),

(Case C-72/07)

(2007/C 82/42)

Language of the case: Spanish

(1) Council Regulation (EC) No 2201/2003 of 27 November 2003, OJ

L 338, p. 1.

Referring court

Tribunal Superior de Justicia de Asturias (High Court of Justice
of Asturias)