Tag Archives: non-discrimination

When is an applicant an applicant? — About the potential abuse of non-discrimination law, ‘Equality Law-Hoppers’ and the EU equality law directives

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

sparbuch-DW-WebWelt-SchwerinIn its Kratzer judgment of 28 of July 2016,[i] the Court of Justice of the European Union (CJEU) responded to the German Federal Labour Court’s preliminary reference concerned with the question what qualities are required to be an applicant who seeks access to employment, to self-employment or to occupation within the meaning of Article 3(1)(a) of the Framework Directive 2000/78/EC and Article 14(1)(a) Recast Directive 2006/54/EC. In it, the CJEU essentially rules that unserious applicants who do not actually seek employment but only apply for the purpose of claiming compensation do not fall under the scope of the directives and their respective articles. The case does not mention Article 3(1)(a) Race Directive 2000/43/EC but there is no reason to believe the conclusion would be any different regarding its application to employment and occupation.

The brief judgment, which was decided without prior opinion of the Advocate General, is unlikely to stir-up the European-wide debate on equality and non-discrimination law and may seem all too obvious to many commentators. However, for the German legal context, the judgment is very significant because it approves the national courts’ case law on the so called Equality Law-Hoppers (AGG-Hoppers) and leaves significant discretion to the national courts to counteract apparent as well as alleged abuses of the General Equal Treatment Act (Allgemeine Gleichbehandlungsgesetz, hereafter AGG)[ii] implementing the EU equality directives. Continue reading

Some thoughts on European and national non-discrimination law and Brexit

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).*

largeEuropean non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process. As well demonstrated by Fredman[1] and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated. For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs. This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5] has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113). The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework. Continue reading