In the recent German case of Kratzer v R+V Allgemeine Versicherung AG
C-423/15, the European Court of Justice (ECJ) clarified
that the protection under the Framework and Equal Treatment
Directives (the Directives) does not extend to job applicants where
those applicants apply for a job solely to seek compensation,
rather than to genuinely gain employment.
R+V Allgemeine Versicherung (R+V) advertised several graduate
positions in various fields of expertise. Mr Kratzer (the Claimant)
applied for the trainee solicitor position, citing his legal and
managerial experience, which fulfilled the criteria set out in the
The Claimant received a rejection in response to his
application. As a result, he claimed €14,000 in compensation
as he believed that he had suffered age discrimination. R+V
explained to the Claimant that its rejection was generated
automatically (which was not its intention) and invited him to
interview for the position he had applied for. The Claimant
declined this invitation. He stated that his future with R+V was
conditional on R+V paying him the €14,000 sought.
After learning that R+V offered all four of the trainee posts to
female candidates, the Claimant claimed a further €3,500 for
discrimination because of sex.
The German Labour and Regional Labour courts rejected the
Claimant's claim and appeal. The Claimant further appealed to
the Federal Labour Court who stayed the proceedings while it
awaited answers from the ECJ on the following questions:
Does Article 3(1)(a) of the Framework Directive and Article
14(1)(a) of the Equal Treatment Directive provide protection
against discrimination to an individual whose application makes it
clear they are not seeking recruitment or employment, but just the
status of a job applicant in order to bring a claim for
If so, should this be considered an abuse of rights under EU
The court's decision
The ECJ referred to Article 3(1)(a) of the Framework Directive
and Article 14(1)(a) of the Equal Treatment Directive which both
extend protection to those "seeking employment".
Unsurprisingly, it stated that, where an individual makes an
application for employment with the sole aim of gaining the status
required to enable him to claim compensation for discrimination,
the individual will not come within the scope of the Directives as
he would not genuinely be "seeking employment".
Therefore, the Claimant could not rely on the protection offered by
The ECJ went on to further clarify that the Claimant could not
be considered a "victim" of discrimination or a
"person injured" in these circumstances as, if he did not
want the job, he had not suffered "loss" or
"damage" within the meaning of the Directives.
Whilst the ECJ noted that it was more suitable for the national
courts to consider whether the Claimant's conduct was abusive,
it offered its opinion, stating there were no grounds to believe
this was the case here.
This case helpfully clarifies that where an applicant has no
legitimate interest in the employment or occupation advertised, he
cannot benefit from the Directive's protection. The ECJ's
commentary also reaffirms that national courts should set clear
expectations of how they will treat claims if an individual
attempts to abuse the protections offered by EU law.
It also serves as an important reminder that employers should
adopt a cautious approach to its application of automated selection
criteria to avoid the same pitfalls (and prevent applicants from
claiming discrimination whether this was intentional or not). It is
rare for individuals to make applications solely to avail
themselves of the ability to bring a claim, therefore employers
should not reject job applications exclusively on the basis of such
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