Misuse of “anti-discrimination” legislation: a case pending at the CJEU

vexatious-litigant-family-lawThe EU’s ambitious legislative framework on equality and anti-discrimination is often criticized for putting unnecessary burdens on enterprises and thereby undermining the competitive position of the European economy. Supporters of the controversial measures claim this isn’t true, affirming that in fact they are not diving rise to an excessive amount of litigation.

Now here is an interesting case, Nils-Johannes Kratzer v R+V Allgemeine Versicherung AG (Case C-423/15), pending before the Court of Justice of the EU. It originates from the German Bundesarbeitsgericht (Federal Labour Court), which has submitted the following prejudicial question:

1.    On a proper interpretation of Article 3(1)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Article 14(1)(a) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), does a person who, as is clear from his application, is seeking not recruitment and employment but merely the status of applicant in order to bring claims for compensation also qualify as seeking ‘access to employment, to self-employment or to occupation’?

2.    If the answer to the first question is in the affirmative:

Can a situation in which the status of applicant was obtained not with a view to recruitment and employment but for the purpose of claiming compensation be considered as an abuse of rights under EU law?

A press release (in German) of the Bundesarbeitsgericht explains the background of the case, which is also reported on by today’s online edition of the weekly Der Spiegel.

As it appears, Mr. Kratzer (the plaintiff) is a lawyer who has specialized in anti-discriminiation litigation … on his own behalf. Allegedly he has made it his habit to apply for job vacancies in which he is not sincerely interested – and when he receives a negative response to any of his applications, he files a lawsuit claiming he is a litigation victim. In the lawsuit opposing him to R+V Allgemeine Versicherung AG, an insurance company, he claims to have been discriminated on grounds of his age. The company, however, argues that it was looking for a trainee, not a lawyer with 15 years professional experience.

According to Der Spiegel, this is only one of “countless” job applications Mr. Kratzer has submitted to law firms, companies, and institutions as a pretext for legal actions he subsequently filed with  various German law courts. In one case he even won a lawsuit before the Bundesarbeitsgericht – against the renowned Charité Hospital in Berlin, which had been looking for a young professional, not a lawyer. In many cases he also negotiated out-of-court-settlements with companies that, unwilling to go through the full length of an expensive lawsuit, preferred to have the matter quickly.

But in the meantime Mr. Kratzer has acquired the reputation of a vexatious litigant. Perhaps he is not the only one. Perhaps EU lawmakers should seriously consider this before adopting new sweeping “anti-discrimination” legislation.

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