Abuse of rights
Labour & European Law Review Weekly Issue 489 28 September 2016
The Court of Justice of the European Union (CJEU) has held in Kratzer v R+V Allgemeine Versicherung AG that someone who applies for a job in order to bring a compensation claim cannot rely on EU law for protection. And if the only reason they applied for the job was to obtain an undue advantage, then their actions could constitute an abuse of rights.
R+V advertised for trainee graduates with a good degree and relevant practical vocational experience in a number of areas, including law. Law graduates also had to have passed both state examinations and an employment law option or have medical knowledge. Mr Kratzer, a lawyer and former manager with an insurance company, applied for a legal trainee position.
When his application was rejected, Mr Kratzer demanded €14,000 compensation for age discrimination. He was then invited for interview but refused to attend, saying that he would only discuss his future with the company once his compensation claim had been resolved. He then submitted his claim to the local labour court. When he discovered that all four trainee posts had gone to women although applications were equally divided between men and women, he submitted another claim of €3,500 for sex discrimination.
Decisions of lower courts
When both the local and regional labour courts dismissed his claims, Mr Kratzer appealed to the federal court on a point of law. It stayed the proceedings and asked the CJEU to answer two questions:
- Can a person who applies for a job in order to bring a compensation claim qualify as someone seeking “access to employment, to self-employment or to occupation” under the European Equal Treatment Directive and the Directive on the Implementation of the Principle of Equal Opportunities and Equal Treatment at Work?
- If the applicant was only interested in bringing a compensation claim, could their application be considered an abuse of rights under EU law?
Decision of CJEU
According to settled case law, the purpose of the Equal Treatment Directive is to lay down a general framework guaranteeing equal treatment “in employment and occupation”, by offering effective protection against discrimination, including age.
The purpose of the Directive on the Implementation of the Principle of Equal Opportunities and Equal Treatment at Work is to ensure that the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation is properly implemented.
These directives only apply, however, to someone seeking employment, and also in regard to the selection criteria and recruitment conditions of that employment. It follows therefore that someone who applies for a job for compensation purposes only cannot be regarded as a “victim” or a “person injured” having sustained “loss or damage” under the terms of the directives.
As Mr Kratzer did not want the job for which he applied, he could not rely on the protection offered by the law. It was for the national court to decide if his actions also constituted an abuse of rights but if it appeared that the objective purpose of the rules had not been achieved and that he had tried to rely on the protection in order to obtain an undue advantage, then his actions could be deemed to be an abuse of rights.