In Kratzer v R+V Allgemeine Versicherung AG the European Court of Justice has held that a person who makes an application for employment with the intention only of claiming compensation and not actually taking the job has no protection under EU Directives prohibiting sex and race discrimination.
Mr Kratzer, who was a lawyer and had formerly been a manager with an insurance company, applied for a trainee position for legal graduates with RAV AG. The requirements of the role were that applicants must have completed a law degree either within the last year or to be completed in the coming months, have relevant practical vocational experience and must have passed state examinations having taken either an employment law option or have some medical law knowledge.
When Mr Kratzer's application was rejected he wrote to RAV AG complaining of age discrimination and demanding 14,000 EUROS in compensation. He was then invited to interview with RAV AG explaining that the application had been automatically rejected and did not accord with the companies intentions. Mr Kratzer declined to attend for interview until his compensation claim had been satisfied. He then issued a claim for the compensation to the Wiesbaden Labour Court. As he subsequently learnt that although the sixty plus applicants had been equally divided between men and women it was four women who were employed, he added on a further claim for 3,500 EUROS in compensation for sex discrimination. The case was dismissed by the Wiesbaden Labour Court and then by the Regional Labour Court. When Mr Kratzer appealed to the Federal Court a question was referred to the European Court asking if a person who applies for a job not to gain employment but just to obtain the status of an applicant to bring claims qualifies as a person "seeking access to employment" for the purposes of the Directives. They also asked if this situation was an abuse of rights under EU law.
The European Court held that the objective of the Directives was to ensure equal treatment in occupation and employment. To provide the protection to a person making applications solely to enable compensation claims would be incompatible with those objectives. They also held that it was for the national court to assess whether the factors constituting abusive practice were met, but the tone of their judgement suggests such a finding could be made in this case.