Brussels, 20/04/2012 (Agence Europe) - EU law does not entitle a worker who has a plausible claim that he/she meets the requirements listed in a job advertisement and whose application was rejected to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process. However, the refusal to grant any access to information may be one of the factors to take into account when establishing facts from which it may be presumed that there has been discrimination.
That is the substance of the ruling delivered by the Court of Justice of the EU in Case C-415/10 in response to questions put by the Bundesarbeitsgericht (German Federal Labour Court) which asked it for an interpretation of EU law on equal opportunities and treatment in employment (Directives 2006/54/EC and 2000/43/EC). The Bundesarbeitsgericht is hearing the case of Galina Meister, a Russian national who holds a Russian degree in “systems” engineering, which has been recognised in German as equivalent to a German degree awarded by a university of applied science. Meister responded to two advertisements successively, with a similar content, published by the company Speech Design to recruit an “experienced software developer” (male or female). Twice her successive applications were rejected, without her being invited to interview and without the company telling her on what grounds her applications were unsuccessful. Believing that she fulfilled the requirements of the post, Meister felt that she had suffered discrimination. She brought an action before the German courts seeking, first, compensation from that company for employment discrimination and, secondly, the production of the file for the person who was engaged, which would enable her to prove that she was more qualified than that person. The German court asked the Court whether EU law entitles a worker to have access to information indicating whether the employer engaged another candidate and if so, on the basis of what criteria; and also whether the fact that the employer does not disclose the requested information gives rise to a presumption that the discrimination alleged by the worker exists.
The Court points out, firstly, that, in line with the above directives and case law (Kelly ruling, C-104/10), it is the person who considers himself/herself to have been wronged who must initially establish the facts from which it may be presumed that there has been discrimination. It is only where that person has established those facts that the defendant (in this instance, Speech Design) must then prove that there has been no breach of the principle of non-discrimination. Secondly, the Court confirms that, under the same case law, EU law does not specifically entitle persons who consider themselves to be the victim of discrimination to information so that they may establish facts from which it may be presumed that there has been discrimination. It is not, however, inconceivable that a refusal of disclosure by the defendant, in the context of establishing such facts, is liable to compromise the achievements of the objective (the prevention of discrimination on the grounds of gender, age ore ethnic origin) pursued by EU law and, in particular to deprive that provision of its effectiveness. Therefore, it is for the German case to establish that such is not the case in this specific instance. It must in particular take account of all the circumstances of the dispute in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been such discrimination have been established. Among the facts which may be taken into account is, in particular, the fact that Speech Design seems to have refused Meister any access to the information which she seeks to have disclosed. Moreover, account can also be taken of the fact that the employer does not dispute that Meister's level of expertise matches that referred to in the job advertisement and that, notwithstanding this, Speech Design did not invite her to a job interview after the publication of the two vacancy notices. (FG/transl.rt)