The Court of Justice of the European Union (the "CJEU") has recently decided on an interesting case involving the interpretation of European antidiscrimination directives, specifically Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, and Directive 2006/54/ EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (the "Directives"). The essence of that case was the question of whether legal protection guaranteed by the Directives also applies to a situation in which a person who in making an application for a post does not seek to obtain that post, but seeks only the formal status of being an applicant with the sole purpose of seeking compensation for discrimination.

Such a speculative application was included in the conduct of Mr Kratzer, who applied for a post based on an advertisement for trainee positions for graduates in certain fields, including law. The criteria set out in that advertisement were possession of a university degree, with very good study results, in one of the specified fields, either completed within the last year or to be completed in the coming months, and relevant practical experience acquired, for example, as an apprentice, trainee or `student worker'. Applicants in the legal field were required to have passed both state examinations, and an interest in employment law or prior knowledge in the field of medicine.

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. He also stated that he was attending a training course to become a lawyer specialising in employment law and that, owing to the death of his father, he had dealt with a very large medical law file, and accordingly, had extensive experience in that field. After the Company had rejected his application stating that it was currently unable to offer him a post, he sent a written complaint to the Company, in which he demanded compensation of EUR 14,000 for age discrimination. Further to that complaint, the Company invited Mr Kratzer to an interview, stating that the rejection of his application had been automatically generated and was not in line with its intentions. However, Mr Kratzer declined that invitation, and suggested a discussion of his future with the Company once his compensation claim had been satisfied. Moreover, having then learnt that the Company had awarded the four trainee posts to women only, although the sixty-plus applicants for those posts were divided almost equally between men and women, Mr Kratzer claimed further compensation of EUR 3,500 for discrimination on the grounds of gender.

Having doubts, the Bundesarbeitsgericht (the German Federal Labour Court), which addressed this dispute in the main proceedings at a national level, decided to refer questions to the CJEU for a preliminary ruling.

The CJEU stated that the Directives concerned employment and occupation, and that their purpose is to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the set grounds, which also include age and gender. The Directives also apply to a person seeking employment. A person making an application for a post, or for being included in a selection procedure, in circumstances such as those described above, clearly is not seeking to obtain the post for which he formally applies. That person cannot, therefore, rely on the protection offered by the Directives, nor can he be regarded as a ‘victim’ or a ‘person injured’ within the meaning of the Directives.

Moreover, EU law cannot be relied on for abusive or fraudulent ends. According to its settled case-law, the CJEU stated that a finding of an abusive practice requires that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved, and at the same time, it must be apparent from a number of objective factors that the essential aim of such a practice is to obtain an undue advantage. The prohibition of abuse is not relevant where such practice may have some explanation other than the mere attainment of an advantage. 

Now, employers can breathe a sigh of relief as the aforesaid judgment makes the practice of speculators applying for a job in order to only seek compensation impossible. On the other hand, employers should bear in mind that to conclude that a certain job applicant is really interested in getting a job or only pretends to have such an interest may be very problematic in practice. Not including / excluding a job applicant in / from a selection procedure based only on the assumption that his actions are intentional or he is not really interested in getting a job is not, therefore, recommended. Likewise, employers should be careful when formulating job ads and conducting job interviews in which most faults still occur in the area of compliance with the principle of equal treatment in the context of access to employment.