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The Court of Justice of the European Union has ruled in a case involving an unsuccessful job applicant who wanted to know whether the recruiting employer engaged another applicant at the end of the recruitment process.
The case concerned Ms Meister, a Russian national born in 1961, 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.
A German company published two advertisements successively, with a similar content, to recruit an “experienced software developer”. Ms Meister applied for the post, but her applications were rejected, without her being invited to interview and without the company telling her on what grounds her applications were unsuccessful.
Being of the view that she fulfilled the requirements of the post, she considered that she suffered less favourable treatment than another person in a comparable situation on the grounds of her sex, age and ethnic origin. 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 Federal Labour Court asked the Court of Justice whether EU law entitles a worker – who has a plausible claim that he meets the requirements listed in a job advertisement, but whose application was rejected – to have access to information indicating whether the employer engaged another candidate and if so, on the basis of what criteria. The Court also asked 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 concluded that EU law must be interpreted as not entitling such a worker to have access to information indicating whether the employer engaged another candidate at the end of the recruitment process.
However, it cannot be ruled out that a refusal to grant any access to information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination. It is for the referring court to determine whether that is the case in the proceedings in question, taking into account all the circumstances of the case before it.