152 / 350
HARALD CHRISTIAN SCHEU
CYIL 4 ȍ2013Ȏ
There was a similar dead end situation, with no rational solution to the dilemma,
that the ECJ ended up in in the case of
Meister v. Speech Design Carrier Systems
GmbH
.
35
The applicant in the proceedings before the German court was a German
female of Russian origin who twice failed in being appointed as a software expert. The
employer refused her twice, but without inviting her to a job interview or informing
her about the reasons for rejection. As she had no information concerning the hiring
procedure and the results, Ms. Meister filed a lawsuit based on the argument that
she had become a victim of discrimination based on gender, age and ethnicity. She
requested the employer to be ordered to pay compensation. She further requested
that she be provided with all information concerning the successful candidate who
was finally hired. The first two national instances dismissed the action. However, the
third instance (i.e. the
Bundesarbeitsgericht
) made a reference for a preliminary ruling
to the ECJ and asked whether EU anti-discrimination law grants an applicant’s right
to receive information from the employer.
In its relatively brief answer the ECJ dealt almost exclusively with the reversal of
the burden of proof. First, the ECJ recalled its earlier case-law according to which
it is for the national court to assess the quality of
prima facie
evidence.
36
In the
past the ECJ had also ruled that the plaintiff had no right of access to information
which would allow him to present convincing
prima facie
evidence.
37
Such an
interpretation, however, provided a very useful guideline for “smart” employers on
how to avoid the pitfalls of anti-discrimination law. The employer simply had to
hide any information related to the hiring procedure. By the way, this is exactly what
the defendant company did in the
Meister
case. In its judgment the ECJ therefore
concluded that the denial of information by the employer must not compromise the
very goals of EU anti-discrimination directives.
38
The conclusions of the ECJ, however, are of an almost humorous character. On
the one hand, the ECJ invited the national court to establish whether there had been
direct discrimination by using all accessible means, including statistical data. On the
other hand, this in no way solved the problem of the national court, which consisted
in the fact that the defendant company did not provide any information about the
hiring process and the candidates who had been accepted. Logically, for the claimant
there were no statistics available. Though the ECJ admitted that the very denial of
relevant information shall be taken into account when
prima facie
evidence is to
be assessed, we do not know what that means in a case in which the suspicion of
discrimination is not supported by any further evidence.
35
C-415/10, Judgment of 19 April 2012.
36
ibid.
, para. 37.
37
ibid.
, para. 39.
38
ibid.
, para. 40.