Tagged: duty of loyal cooperation

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.

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