EU Court Clamps Down on Discrimination, Overrides Belgian Ruling

[WSJ Law Blog]

In the U.S., the Supreme Court is routinely called on to settle conflicts between state and federal law. The European Court of Justice — Europe’s highest court — plays a similar role, except that it must reconcile EU law with that of its constituent countries.

That tension, reports the WSJ’s Charles Forelle, bubbled to the surface in a recent ECJ ruling that a Belgian garage-door installer broke the EU’s antidiscrimination laws by stating publicly that he wouldn’t hire Moroccans, even though there was no evidence any job applicant had actually been rejected. The ruling rejected a prior decision from a a Belgian court originally that the statements, while possibly unsavory, didn’t necessarily amount to discrimination since no injured party could be found. (The British and Irish governments joined the case with similar arguments.)

Here’s what happened: The Belgian newspaper De Standaard quoted the director of a garage-door company, Pascal Feryn, as saying “we aren’t looking for Moroccans. Our customers don’t want them.” In a TV broadcast, he expanded: “People often say: ‘no immigrants’…I must comply with my customers’ requirements.” He added: “I’m not a racist. Belgians break into people’s houses just as much. But people are obviously scared.”

In rejecting the views of the Belgian Court, the ECJ said EU countries must provide for “effective, proportionate and dissuasive” sanctions — including, possibly, injunctions and fines — against employers who make sweeping statements viewed as discriminatory.

“It may have a very big impact on the attitude of employers,” says Olivier Rijckaert, an employment lawyer at Field Fisher Waterhouse LLP in Brussels. Statements such as “we want to hire young people,” or “we prefer women” are now suspect, he says.

Several EU countries have sizeable minority populations that make up major portions of their blue-collar work force; Turks in Germany and Albanians in Greece. “I can imagine this will invite people to challenge decisions in other places in Europe where there’s racism,” say Dirk Nuyts, an immigration lawyer with Brussels-based Fragomen, Del Rey, Bernsen & Loewy.