Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
Closed Expands Expression
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The Court of Justice of the European Union held that “the fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment 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.” This was in response to a referral submitted by the appellate chamber of the Labour Court in Brussels after the first instance chamber dismissed an application filed by the Centrum voor gelijkheid van kansen en voor racismebestrijding (Centre for equal opportunities and combating racism) in relation to public remarks made by one of the directors of a company called Firma Feryn NY (Feryn), confirming that his company did not wish to recruit “immigrants”. The Court underlined that “such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labor market” [para. 41.1]. The Court further noted that “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. It is then for that employer to prove that there was no breach of the principle of equal treatment” [para 41.2].
The Centre for Equal Opportunities and Opposition to Racism (Centrum voor gelijkheid van kansen en voor racismebestrijding) brought legal action against a company called Firma Feryn NY due to discriminatory statements made against immigrants by the company’s co-director to a newspaper and the television. The co-director expressed in his statement that his company could not employ immigrants, particularly Moroccans, because customers were wary of giving such employees access to their homes for the necessary work. The applicant deemed this statement to be a representation of a discriminatory recruitment policy adopted by the company.
Accordingly, the applicant filed an application before the first instance chamber of the Labor Court in Brussels, which was later dismissed on the 26th of June 2006 on the grounds that there was neither proof nor any presumption that a person had applied for a job at the defendant’s company and had not received it because of his or her ethnic origin. The Centre appealed to the appellate chamber of the Court, which decided to stay the proceedings and refer to the Court of Justice of the European Union for a preliminary ruling.
The Second Chamber of the Court of Justice of the European Union delivered the opinion in the presence of judges C.W.A. Timmermans, President of the Chamber, L. Bay Larsen, K. Schiemann, J. Makarczyk and J.‑C. Bonichot, Rapporteurs, and M. Poiares Maduro as the Advocate General.
The Court dealt with different questions. The first question is the one relevant to freedom of expression and states as follows:
“(1) Is there 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 where an employer, after putting up a conspicuous job vacancy notice that 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!’?”
The Court held that under Council Directive 2000/43/EC, direct discrimination could take place based on statements made by an employer. The Court elaborated more that an act of direct discrimination does not necessarily have to involve a victim. The Court stated in this regard that “[t]he 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 Directive 2000/43. The existence of such direct discrimination is not dependent on the identification of a complainant who claims to have been the victim.”
The Advocate General of the Court noted in his opinion that “contrary to conventional wisdom, words can hurt.” He stated that the speech was directly discriminatory and discouraged immigrants from applying for a job.
He further emphasised that “[b]y publicly stating this intention not to hire persons of a certain racial or ethnic origin, the employer is, in fact, excluding those persons from the application process and from his workflow. He is not merely talking about discriminating, he is discriminating. He is not simply uttering words; he is performing a ‘speech act’. The announcement that persons of a certain racial or ethnic origin are unwelcome as applicants for a job is thus itself a form of discrimination” [para. 16 of the AG Opinion].
In light of the above, the Court concluded that “[t]he fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment 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, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market” [para. 41].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The approach adopted in this case was subsequently followed by the Court of Justice of the European Union in two cases, namely:
Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării (25 April 2013) ECLI:EU:C:2013:275. This case involved a Romanian patron of a football club who made homophobic statements such as “not even if I had to close [FC Steaua] down could I accept a homosexual on the team” and that “even if [player X’s current club] gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drinker … but if he’s a homosexual I don’t want to know about him.” In 2010, Asociaţia ACCEPT, an NGO working on LGBT rights in Romania, lodged a complaint against the patron and the football club before the National Council for Combating Discrimination (CNCD). The case ended up being referred to the Court of Justice of the European Union which established direct discrimination under the Framework Equality Directive.
In NH v Associazione Avvocatura per i diritti LBGTI – Rete Lenford (23 April 2020) ECLI:EU:C:2020:289, the Court of Justice of the European Union was asked to decide on homophobic speech in the employment context. During an interview on a radio programme, a senior lawyer at a law firm stated that he would never hire a homosexual person to work in his law firm nor wish to use the services of such persons. There was no open recruitment procedure at the law firm during the time in which the comments were made. Following Feryn and Accept, the Court found a case of direct discrimination based on the statements
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The national courts must follow the judgment made by the Court of Justice of the European Union as submitted by the Belgian Court.
When a question has already been answered through the process of preliminary references then, apart from certain restricted conditions, other national courts should not submit the same questions since the precedent has already been set,
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