Mock applicants (“AGG Hopper”) do not have discrimination protection

(ECJ, decision dated July 28, 2016 – Rs C-423/15)

The ECJ decided that a mock applicant does not enjoy EU legal protection. Anyone who only formally applies for a job with no interest in being hired cannot invoke the protection provided by the EU directives on equal treatment (Council Directive 2000/78/EC and 2006/54/EC), therefore, the protection of the General Law on Equal Treatment (AGG) does not apply either.

The Federal Labor Court had submitted a petition to the ECJ for a preliminary ruling and presented the questions as to whether a mock applicant qualifies as applicant as defined by sec. 6 para. 1 sent. 2 AGG, and if so, whether a compensation claim pursuant to sec.15 para. 2 AGG could be denied due to abuse of rights.

This petition for a preliminary ruling was based on the following case: The claimant, a middle-aged attorney, in the meantime known throughout Germany as a so-called “mock applicant” (German: “AGG-Hopper”), had applied for a trainee position with the respondent, an insurance company, for which he categorically was already not considered due to the executive experience emphasized in his application. He had rejected the invitation to a job interview. After his rejection, he filed suit for compensation due to alleged discrimination based on his age and gender. He had previously applied at various companies and law firms and after each rejection in a number of cases, he sued for damages and compensation due to alleged discrimination based upon his age and/or gender according to sec.15 AGG.

Thus, the main proceedings are characterized by the fact that the claimant’s application for a trainee position was only submitted to gain the formal status of an applicant with the sole purpose of claiming compensation.

The ECJ confirmed the legal opinion of the Federal Labor Court, according to which a strictly formal applicant, i. e. a person who formally applies for a position, yet obviously does not wish to receive it, is not entitled to EU legal protection. Such a person cannot, in those circumstances, be regarded as a victim or a person having sustained damage within the meaning of the definitive EU directives. The court also decided that the claim for compensation can also be considered abuse of rights.

In its decision, the ECJ refers to its case law, whereby EU law cannot be relied on for abusive or fraudulent ends. The objective element of the abuse of rights is said to be fulfilled if “despite formal compliance of the condition provided by the EU regulation, the aim of such regulations has not been achieved.” Subjectively, according to the decision of the ECJ, the essential aim of the transactions concerned is to obtain an undue advantage. According to the decision of the ECJ, the prohibition on the abuse of rights does not apply if there might be another explanation for the application other than merely obtaining an undue advantage.

The Federal Labor Court will now be called upon to decide the pending legal case on the basis of this ECJ judgment and presumably dismiss the claimant’s appeal on points of law. 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. It remains to be seen which concrete criteria and circumstantial evidence the Federal Labor Court will use to derive the abusive practice in this case.

Practical recommendations:

The judgment by the ECJ is most welcome. Nonetheless, every employer needs to take into account that abuse of rights and mock applications must be proven according to national law. That is where the actual difficulty lies in an individual case. Therefore, employers should carefully structure job postings and/or rejection letters to job applicants, in order to avoid discrimination in the application process.

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Tags: #Labour law, #Newsletter Employment Law 4/16

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