The Federal Labor Court (BAG) has brought forward two questions to the European Court of Justice (ECJ): First, whether a rejected applicant must be compensated for discriminatory treatment based on European Union law, although he never intended to be employed in a permanent position. And second, whether such proceedings is an abuse of rights under Union Law (BAG, ECJ template dated June 18, 2015 – 8 AZR 848/13 (A)).
The BAG had to deal with the complaint of an unsuccessful candidate who was clearly not qualified for the advertised position. The company had advertised positions for a trainee pro-gram and requested a "very good university degree, which dates back no longer than one year". The plaintiff (born in 1973, degree 2002) pointed out in his application his many years of management experience as a former senior executive. The company rejected the application. The applicant then requested compensation for age discrimination under the General Equal Treatment Act (AGG). The company subsequently invited him for an interview, which the applicant rejected by pointing out that one could talk about his future after payment of compensation was made. After the plaintiff learned that the trainee positions had been occu-pied by women, he asked for additional compensation due to discrimination on the grounds of gender. This is the typical strategy called AGG-Hopping.
The assessment of this situation under national law was clear for the BAG: The candidate has to have applied specifically with the goal of being employed. Only then could he be con-sidered as an "applicant" / "employee" according to § 6 para. 1 sentence 2 of the AGG. Ac-cording to the BAG, the plaintiff had submitted an application with a wording that is contrary to the requirements of the advertised post, and thus, provoked the rejection of his application. He had only formally sought an applicant status in order to claim compensation as a rejected applicant in accordance with § 15 of the AGG. This does not fall within the scope of the principle of equality and protection against discrimination. The application was not serious and therefore disregarded under the AGG.
The wording in the AGG underlying the EU Directive (EU Directive 2000/78/EC in Art. 3 para. 1 lit. a), however, does not protect, unlike in the AGG, the "applicant", but rather the "access to gainful employment by being hired in a permanent position or through self-employment". According to the BAG, it is therefore unclear whether the directive requires the serious intention of being hired. Only if the ECJ confirms this, then the ECJ has to answer the second question of whether the applicant's lack of subjective seriousness still falls under the law within the meaning of the Union's legal requirements. The ECJ must interpret the law with regard to both questions. Until then, the BAG proceedings are still pending.
Absolute protection against arbitrary claims for alleged discrimination is not possible. Experi-ence has shown that rejected candidates or "AGG-Hopper" usually only target those compa-nies who have exposed themselves to this type of attack in their job posting. Exposed areas are avoidable. Once again, the importance of prudent and careful wording of job advertise-ments has come to light.