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CJEU Case C-414/16 / Opinion

Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
09/11/2017

Key facts of the case:

Equal treatment in matters of employment — Article 4(2) of Directive 2000/78/EC — Genuine, legitimate and justified occupational requirements of organisations the ethos of which is based on religion or belief — Difference in treatment based on religion in matters of employment by an auxiliary organisation to a church — Article 17 TFEU — Ecclesiastical privilege of self-determination — Limited judicial review under Member State constitutional law of ‘self-conception’ of religious groups — Primacy, unity, and effectiveness of EU equal treatment law — Articles 52(3) and 53 of the Charter of Fundamental Rights of the European Union — Balancing of competing rights — Horizontal effects of the Charter.

Outcome of the case:

I therefore propose the following answers to the questions referred by the Bundesarbeitsgericht (Federal Labour Court, Germany): 

  1. Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may not itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer/church’s ethos.
  2. In the circumstances of the main proceedings, it is not necessary to disapply a provision of national law — such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz,General Law on equal treatment) — which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement if it is impossible to interpret that provision in conformity with Article 4(2) of Directive 2000/78.
  3. ‘Pursuant to Article 4(2) of Directive 2000/78, in assessing genuine, legitimate and justified occupational requirements, having regard to the nature of the activities or of the context in which they are carried out, along with the organisation’s ethos, the national referring court is to take account of the following:

(i) the right of religious organisations to autonomy and self-determination is a fundamental right that is recognised and protected under EU law, as reflected in Articles 10 and 12 of the Charter. Article 4(2) of Directive 2000/78, and in particular its reference to the ‘ethos’ of religious organisations, is to be interpreted in conformity with this fundamental right;

(ii) Article 4(2) of Directive 2000/78 affords Member States a wide but not unlimited margin of appreciation with respect to occupational activities for which religion or belief amount to genuine, legitimate and justified occupational requirements, by reason of the nature of the activities or the context in which they are carried out;

(iii) the reference to ‘Member States constitutional provisions and principles’, in the first paragraph of Article 4(2) of Directive 2000/78, when interpreted in the light of Article 17(1) TFEU, means that Directive 2000/78 is to be implemented in such a way that the model selected by individual Member States for the conduct of relations between churches and religious associations or communities and the State, is to be respected and not prejudiced;

(iv) the word ‘justified’ in Article 4(2) of Directive 2000/78 requires analysis of whether occupational requirements entailing direct discrimination on the grounds of religion or belief are appropriately adapted to protection of the right of the defendant to autonomy and self-determination, in the sense that they are suitable for the purpose of attaining this objective;

(v) the words ‘genuine, legitimate’ require analysis of the proximity of the activities in question to the defendant’s proclamatory mission;

(vi) in conformity with the requirement in Article 4(2) of Directive 2000/78 for difference of treatment to be implemented in accordance with ‘general principles of law’, and the approach of the European Court of Human Rights to interpretation of Article 9(2) ECHR in determining whether the exercise of the right of a religious organisation to autonomy and self-determination produces effects disproportionate with respect to other rights protected by the ECHR, the impact, in terms of proportionality, on the legitimate aim of securing the effet utile of the prohibition on discrimination on the basis of religion or belief under Directive 2000/78, is to be weighed against the right of the defendant to its autonomy and self-determination, with due account taken of the fact that Article 3 of Directive 2000/78 makes no distinction between recruitment and dismissal.