CYIL Vol. 4, 2013

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.