EU anti-discrimination law does not apply to artificial applications

The European Court of Justice (ECJ) ruled on 28 July 2016 (docket number: C-423/15) that a person cannot claim discrimination protection if the person is artificially applying for a post with the essential aim of not actually taking up that post but only in order to bring claims for compensation.

The plaintiff (Mr Kratzer) has made it his habit to apply for job vacancies in which he is not sincerely interested, in order to file lawsuits claiming that he is a victim of discrimination when he receives a negative response to his applications.

A big insurance company advertised trainee positions for graduates in the fields of economics, mathematical economics, business informatics and law. Mr Kratzer applied for a trainee position in the legal field emphasising that he fulfilled not only all the requirements set out in the advertisement but that, as a lawyer and former manager with an insurance company, he had management experience and was used to taking on responsibility and working independently. The insurance company rejected Mr Kratzer’s application stating that it was currently unable to offer him a post.

In his lawsuit against the insurance company, Mr Kratzer claimed to have been discriminated against because of his age. Having learnt that the insurance company awarded the trainee posts to women only, Mr Kratzer also claimed discrimination on the grounds of sex. The German Federal Labour Court (BAG) sought clarification from the ECJ whether a person who, as is clear from his application, is seeking not recruitment and employment but merely the status of applicant in order to bring claims for compensation, falls with the anti-discrimination directive. The ECJ held that the anti-discrimination directive does not apply in this case. EU law cannot be relied on for abusive or fraudulent ends.

The decision is good news for employers as it makes it easier for them to reject claims for compensation raised by persons who are not seeking recruitment and employment but only trying to claim compensation. Nonetheless, employers should be careful to avoid discriminatory elements when advertising for a new job position (e.g. avoid use of male gender only, or words such as young team etc.).