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How serious are you with your job application?

The Federal Labour Court (Bundesarbeitsgericht) had to deal with this question in the case at hand (docket number 8 AZR 848/ 13(A)) and made a reference to the European Court of Justice (Europäischer Gerichtshof) for a preliminary ruling.

The plaintiff, who had been a fully qualified lawyer since 2001 and worked in this field for years, had applied for a job at an insurance company which advertised a ‘trainee- program’ in the fields of law, mathematics, computer science and business in 2009. After his application got rejected, the plaintiff filed a lawsuit claiming damages for discrimination. The plaintiff turned down a subsequent invitation to a meeting with the human resources manager of the defendant and suggested that the defendant should quickly settle his claim.

Based on the job application and the rejection of the meeting with the human resources manager, the Senate of the Federal Labour Court assumed that the plaintiff did not have a real intention of gaining employment, as his application was not suitable for a ‘trainee’ position. The plaintiff was therefore not a job applicant as per § 6 I 1 of the General Equal Treatment Act ( Allgemeines Gleichbehandlungsgesetz- AGG).

The applicable European Union Directives however, do not name or define the terms `job applicant` or `employee` but simply protect  access to employment and self- employment. It is also not clear whether EU Law requires the job applicant to have the serious intention or wish of finding employment. The question as to whether the mere existence of a formal application justifies a legitimate application of EU legal protection, is solely an issue of interpretation for the Court of Justice. The appeal procedure before the Federal Labour Court was therefore suspended pending the decision of the European Court of Justice in this regard.