The burden of proof in cases of discrimination during recruitment

The Rewe/Comet doctrine establishes that in the absence Union rules on procedural law, it is the responsibility of the Member States’ legal systems to provide for remedies stemming from EU law subject to the principle of effectiveness (national procedural rules may not make it impossible to exercise EU rights) and equivalence (national procedural law may not discriminate between EU remedies and similar domestic actions). This doctrine was developed out of the duty of loyal cooperation (article 4 (3) TEU). Of course, as European integration continues, procedural law gets harmonised more and more. So what happens if there are EU rules on procedural law, but those rules have not fully been harmonised? How does the duty of loyal cooperation affect the interpretation of those rules? In C-415/10 Meister the Court held that the duty of loyal cooperation requires, not surprisingly, national courts to make sure that in applying national procedural law the achievement of the objectives of secondary EU law are not compromised.

Ms Meister, a Russian national and systems engineer, applied for a job as ‘experienced software developer’ at a company called Speech Design. She was rejected twice (the job ad was published again after Ms Meister was turned down the first time) by Speech Design without letting her know the grounds for which she was unsuccessful in her application. Ms Meister subsequently brought an action for damages because she believed that she was being discriminated against on grounds of her sex, age and ethnic origin. The question was whether EU law (Directives 2000/43 on equal treatment on the basis of ethnicity, 2000/78 on equal treatment in employment and 2006/54 on equal treatment on grounds of sex in matters of employment) required the employer to disclose information on the grounds of refusal if a candidate demonstrates she meets the requirements listed in the job ad.

All those directives contained provisions which required national authorities to ensure that national procedural laws would initially require the person claiming to be discriminated against to demonstrate facts from which it may be presumed that there was discrimination. If such facts are deemed to exist by national courts, it is up to the respondent to prove that there was in fact no discrimination. Ms Meister claimed on the basis of this rule that she therefore had the right know why her application was rejected.

The Court did not accept such an interpretation. However, it did state that the refusal to provide information by Speech Design could constitute a fact from which it could be presumed that there was discrimination, requiring Speech Design to prove that there was no discrimination. In ensuring the effectiveness of those Directives the Court said that it follows from the duty of loyal cooperation that national courts ensure that the refusal by Speech Design to not disclose information relating to its refusal of Ms Meister’s job application that it is not liable to compromise the goals of the directives on equal treatment. National courts therefore

must, in particular, take account of all the circumstances of the main proceedings, in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been such discrimination have been established.

Among those circumstances are the fact that Speech Design has refused any access to information sought by Ms Meister and the fact that Speech Design did not invite Ms Meister for an interview although she met the level of expertise required for the job. So although the directives do not give a right to access of information, the refusal to give that information can constitute a factor from which it may be presumed that there was in fact discrimination:

46           In the light of the foregoing, the answer to the first question is that Article 8(1) of Directive 2000/43, Article 10(1) of Directive 2000/78 and Article 19(1) of Directive 2006/54 must be interpreted as not entitling a worker who claims plausibly that he meets the requirements listed in a job advertisement and whose application was rejected to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process.

47      Nevertheless, it cannot be ruled out that a defendant’s 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 main proceedings, taking into account all the circumstances of the case before it.

Of course, if this is the case, Speech Design will have to disclose the information in order to avoid failure to meet the burden of proof. Anyway, just like in the Rewe/Comet line of cases, this case also emphasizes the duty of loyal cooperation and effectiveness of EU law for national judges in matters of procedure. The difference then is that in Meister the duty of loyal cooperation turns into a positive obligation (reaching the goals of the directives), whereas the Rewe/Comet doctrine entails a negative obligation (refrain from applying national procedural rules that would run counter to the principles of equivalence and effectiveness).

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