With today's ruling by the European Court of Justice (ECJ) in favour of a Baker & McKenzie insurance client, Baker prevailed in the case of Mr Kratzer in a case under the German Anti-discrimination Act (AGG).


The plaintiff, a well-known anti-discrimination ("AGG") plaintiff (in Germany so-called "AGG-Hopper"), primarily sought compensation from employers in Germany on the grounds that he had been discriminated against because of his age and sex when he applied for a trainee position in 2009. Kratzer's legal actions were unsuccessful both in the first and in second instance.  


The Federal Labor Court of Germany (BAG) opted not to decide on the case in the revision process in 2015 without European judicial reinsurance and continued the revision proceedings pending a ruling by the ECJ. Clarification was sought as to whether and how the European Council guidelines granting a general framework for equal treatment in employment and occupation as well as the principle of equal opportunities and equal treatment of men and women in employment and occupation are to be interpreted, also for those who seek "access to employment or to dependent employment", to the extent of being able to claim compensation also if their application indicates that their goal is not a recruitment and employment, but merely the status as a candidate.  


This was now clarified by the ECJ: A 'mock' candidate does not fall within the scope of anti-discrimination rules and his behavior can be regarded as an abuse of rights. The ECJ emphasized that the factual review of this situation is to be made by the national courts. It was also clarified that 'mock' applicants are not entitled to any compensation.  


"National courts will now have to decide who is a 'mock' applicant under the respective Anti-Discrimination laws. The German BAG already came to this evaluation based on the contents of the application itself, which, inter alia, given the highlighted executive experience do not fit the advertised trainee position, and due to the rejection of the offered interview option," comments Dr. Burkard Göpfert, employment law partner at Baker & McKenzie.  


Baker & McKenzie regularly advises and represents major national and international companies in labor issues - also procedurally, most recently i.a. Nokia Networks before the Federal Labour Court (BAG 4 AZR 796/13) relating to the revision of an IG Metall member in terms of trade union bonus based on the restructuring or Opel in the process improving the situation of members of IG Metall, wherein the BAG dismissed the action of an Opel employee from the factory in Rüsselsheim.  


Legal advisors: Baker & McKenzie  

Lead: Employment: Dr. Burkard Göpfert (Partner, Munich)                                                                               

Team: Employment: Thomas Meyerhans (Associate, Munich)

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