Kratzer v R+V Allgemeine Versicherung AG [2016]

Does a job applicant gain protection under the equal treatment Directive if the purpose of making the application is not to get the job but only to get the status of someone who could take a claim and gain compensation? The answer is no, according to the CJEU - that would be an abuse of the rights granted under the Directive.

The claimant in this case applied for a trainee solicitor post. The firm were looking for law graduates. He was a lawyer and former manager with an insurance company. When his application was rejected he claimed €14k compensation for age discrimination and, on finding out that all the four trainee posts were offered to female candidates, claimed a further €3.5k for sex discrimination.

If he didn't want the job, he would, in the opinion of the Court, be abusing the rights under the Directive and compensation would not be due to him. Although they left it to the national courts to determine in this case, the CJEU gave heavy hints as to where their thinking lay:

"It is for the national court to verify, in accordance with the rules of evidence of national law, provided the effectiveness of EU law is not undermined, whether the factors constituting an abusive practice are present in the case before it... In that regard, if it appears objectively, first, that despite formal compliance with the conditions laid down in Directives 2000/78 and 2006/54 the objective pursued by those directives has not been achieved and, second, that Mr Kratzer applied artificially for a post with the essential aim of not actually taking up that post but of relying on the protection offered by those directives with a view to obtaining an undue advantage, which is for the national court to determine, it would then have to be considered that Mr Kratzer is relying abusively on that protection... In those circumstances, the answer to the questions referred is that Article 3(1)(a) of Directive 2000/78 and Article 14(1)(a) of Directive 2006/54 must be interpreted as meaning that 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 applicant with the sole purpose of seeking compensation does not fall within the definition of ‘access to employment, to self-employment or to occupation’, within the meaning of those provisions, and may, if the requisite conditions under EU law are met, be considered to be an abuse of rights."

http://curia.europa.eu/juris/celex.jsf?celex=62015CJ0423&lang1=en&type=TXT&ancre

Alternatively, for a more in-depth analysis of the Kratzer case, read Paula Murphy's excellent review here.