Feryn is a Belgian company that is specialized in sales and installation of garage gates. In April 2005, a director communicated that the company was not hiring people with certain ethnical background because it did not comply with the costumers’ interest because employees have access to private living areas for a longer period. UNIA sued for determination that Feryn practices discriminatory hiring policy. The Directive 2000/43/EG regarding the application of the principle of equality obligates EU Member States to proceed against discrimination against employers because of racist reasons. The Labour Court in Brussels presented the procedure to the ECJ and asked them about the interpretation of that directive and the conformity with Belgian law.

The first question submitted dealt with the question whether the public statement by the employer to not hire people with certain ethnical background portrays discrimination which is forbidden according to the directive. The ECJ affirmed discrimination because it keeps a certain group of people from applying to this job, whereby the access to the labour market is hindered. Furthermore, the lack of an identifiable affected person should not lead to a denial of direct discrimination.

The second question submitted dealt with the reversion of the burden of proof to the disadvantage of the employer. The ECJ decided that statements of employers about not wanting to hire people with a certain ethnic background, are enough to assume discrimination.

The last question submitted concerned sanctions and their appropriateness. The ECJ claimed that in cases in which direct victims do not exist, a determination of discrimination or a conviction of the employer to refrain from discriminatory practices comes into question. Further, one could award the complaining institution compensation.