The European Court of Justice ("ECJ") has ruled in Kelly v University of Ireland (University College, Dublin), that the European Council equal treatment directives do not create an express right to obtain unredacted disclosure from a course provider of the admission application forms and scores of successful applicants.
Mr Kelly applied unsuccessfully for a place on a vocational training course provided by the University of Ireland. He subsequently brought a claim for sex discrimination against the University claiming that he was better qualified than the least-qualified female candidate to be offered a place on the course. Mr Kelly sought unredacted disclosure form the University of the successful applicants' application forms and copies of their scoring sheets to support his claim. The High Court of Ireland refused his application and referred several questions to the ECJ, which included whether the European Council equal treatment directives contained a right to disclosure of the requested information.
One of the Directives concerned (Directive 97/80) provides that an individual making a discrimination claim must first establish facts from which discrimination can be presumed. If the individual establishes such facts, then the burden shifts to the defendant to prove that it did not discriminate against the claimant.
The ECJ held that Directive 97/80 does not create an express right to disclosure of the unredacted information sought. However, the absence of this "right" did not mean that in another case disclosure would not be ordered.
The ECJ acknowledged that refusal of disclosure could prevent a claimant from establishing the facts required to shift the burden to the defendant, which may frustrate the objective of the Directive. The ECJ held that this would be a matter for the national court to determine on the particular facts of a case. In considering whether disclosure should made, the national court must take into account the principles of confidentiality and the protection of personal data.
The ECJ confirmed that the other equal treatment directives which specifically concern discrimination in the provision of vocational training also do not create an express right to the disclosure sought.
This case confirms that in cases where an unsuccessful applicant for admission to a course claims that he/she has been the victim of discrimination, there is no express right under European law to disclosure of unredacted information relating to successful applicants' for a course.