Article 10 - Freedom of thought, conscience and religion
Article 21 - Non-discrimination
Article 47 - Right to an effective remedy and to a fair trial
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):
(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.
36) Second, I will detail how and why Articles 52(3) and 53 of the Charter are central to the resolution of the legal problems arising in the main proceedings. Article 52(3) of the Charter states that, in so far as rights contained in the Charter correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same. Article 52(3) adds that this provision ‘shall not prevent Union law providing more extensive protection’. The part of Article 53 that is of primary relevance concerns the statement, as interpreted by the Court in its ruling in Melloni, ( 16 ) that nothing ‘in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and … the Member State’s constitutions’.
48) However, dependence on economic integration to ground EU competence receded under subsequent Treaty amendments, ( 28 ) so that whether or not a religious organisation is engaged in an ‘economic activity’ will not always be pertinent to the substantive tranche of EU law in issue. For example, such organisations have fought restrictions on free movement affecting their interests that Member States have sought to justify on the basis of public policy, ( 29 ) an exercise which can entail consideration of policies ‘of a moral and philosophical nature’. ( 30 ) Under the current constitutional framework of the European Union, both religious organisations ( 31 ) and individual applicants ( 32 ) can call on the protection afforded by Article 10 of the Charter to contest their right to freedom of religion with respect to acts of the institutions, bodies, offices and agencies of the EU, ( 33 ) and those of the Member States when they are implementing EU law, ( 34 ) irrespective of whether or not such measures are aimed at regulation of economic activities. The same applies in disputes of a horizontal nature, such as that arising in the main proceedings, which entail interpreting Member State law in conformity with a directive, in so far as it is possible to do so. ( 35 )
52) The Charter is to be applied in the main proceedings in accordance with the following rules.
53) First, as established in the Court’s settled case-law, the rules of secondary legislation of the Union must be interpreted and applied in compliance with fundamental rights. ( 38 ) This Court has also held that ‘the right guaranteed in Article 10(1) of the Charter corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope.’ ( 39 ) Article 52(3) of the Charter is intended to ensure consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. ( 40 ) Consequently, the right of religious communities such as the defendant to an autonomous existence is guaranteed to ‘the minimum threshold of protection’ ( 41 ) set in the case-law of the European Court of Human Rights. This forum externum of freedom of religion must be considered in interpreting Article 4(2) of Directive 2000/78 and Article 17 TFEU.
54) Second, at the same time, given that Article 9 of the ECHR also guarantees the forum internum of freedom of religion and belief, ( 42 ) which includes freedom not be part of a religion, ( 43 ) due account must equally be given, in interpreting Articles 1 and 2 of Directive 2000/78, to the case-law of the European Court of Human Rights that is pertinent to this limb of Article 9 of the ECHR, in determining whether, as a matter of EU law, the applicant has suffered unlawful discrimination or rather been subjected to justified unequal treatment. ( 44 ) Both applicant and defendant are, of course, entitled to an effective remedy to enforce their respective rights pursuant to Article 47 of the Charter. ( 45 )
55) This brings me to the third way in which the Charter is pertinent to the main proceedings. It is embedded in both the case-law of this Court, and of the European Court of Human Rights, that in the event of a collision between, or competition among, rights, it is the essential function of courts to undertake a thorough balancing exercise between the competing interests at stake. ( 46 ) The same approach must necessarily be deployed in resolving the dispute in the main proceedings, in which there is no direct conflict between an individual and the State over fundamental rights protection, but in which the latter is a protector of conflicting rights. ( 47 )
59) With regard to Article 53 of the Charter, this Court held in Melloni that this provision is to be interpreted as meaning that the application of fundamental rights standards arising from a Member State’s constitutional order is precluded when it compromises the ‘primacy, unity and effectiveness of EU law’ over the territory of that State. ( 51 )
57) Fourth, another element of Article 52(3) of the Charter, along with the text of Article 53 of the Charter, is central to the approach to be employed to the questions arising in the main proceedings. Article 52(3) further states that this provision ‘shall not prevent Union law providing more extensive protection’, while Article 53 entitled ‘[l]evel of protection’ provides, inter alia, that nothing in the Charter ‘shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and … by the Member States constitutions.’ ( 49 )
58) With regard to the ‘more extensive protection’ that the Union may provide pursuant to Article 52(3) of the Charter, as will be illustrated in section V(C) below in the answer to question 1, this requires due consideration to be given as to whether or not Article 17 TFEU and Article 4(2) of Directive 2000/78 amount to incidences in which the Union has elected to provide ‘more extensive protection’ than that supplied under the ECHR, with respect to the scale and intensity of judicial review of decisions in which religious organisations such as the defendant purport to exercise their right to autonomy and self-determination, while question 3 requires elaboration of the factors to be applied by a court when balancing the right not to be discriminated against on the basis of religion or belief, protected by Articles 1 and 2 of Directive 2000/78, ( 50 ) and the right to self-determination and autonomy of religions organisations, recognised in Article 4(2) of Directive 2000/78.
67) An analysis will first be made of the case-law of the European Court of Human Rights that is relevant to limitations on judicial review when there is a competition between the right of religious organisations to autonomy, as protected under Articles 9 and 11 of the ECHR, and some other right equally guaranteed by the ECHR, such as the Article 8 right to privacy. Next, Article 4(2) of Directive 2000/78 will be analysed, to determine whether it provides more extensive protection of the right of religious organisations to autonomy and self-determination, within the meaning of Article 52(3) of the Charter, with respect to the scale and intensity of judicial review of religious organisations relying on this right in employment relations. Third, Article 17 TFEU will be examined to the same end.
78) Therefore, in contrast with recent cases in which the Court was asked to assess a horizontal competition between freedom of religion, in the context of indirect discrimination, and another fundamental right, and notably freedom to conduct a business, ( 67 ) Article 2(2)(b)(i) of Directive 2000/78 is not available to the defendant as a justification for unequal treatment. It provides that indirect discrimination will not be taken to have occurred if the relevant provision, criteria or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and nececesary. Because the main proceedings concern direct discrimination, the only justifications open to the defendant lie in so far as Directive 2000/78 provides for them. ( 68 ) The justifications pertinent to the main proceedings are Articles 4(2) and 2(5) of Directive 2000/78, ( 69 ) as interpreted in the light of primary EU law, and notably Article 17 TFEU and Article 47 of the Charter. ( 70 )
83) Second, the first paragraph of Article 4(2) of Directive 2000/78 states that the difference of treatment addressed in that provision shall be implemented taking account of Member States’ constitutional provisions and principles (see also Article 52(4) of the Charter with respect to the constitutional traditions common to the Member States) ( 75 ). However, the wording of Article 4(2) of Directive 2000/78 falls short of supporting contraction of the role of courts in reviewing reliance by a religious organisation on Article 4(2) of Directive 2000/78, especially in the absence of any express reference in that provision to Member State law ‘for the purpose of determining its meaning and scope’. ( 76 ) As such, the limitation provided in Article 4(2) of Directive 2000/78 is to be given an autonomous meaning, which must take into account the context of that provision and the objective pursued by Directive 2000/78. ( 77 )
91) Indeed, the minimal level of protection guaranteed by Article 52(3) of the Charter, by reference to the case-law of the European Court of Human Rights with respect to the right of religious organisations to autonomy and self-determination, has a consequence of fundamental importance to the interpretation of Article 17 TFEU. Although Article 17(1) TFEU states that the Union ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’, this cannot mean that rules concerned with the protection of the autonomy of churches and other religious organisations that have been developed under the auspices of Articles 9 and 11 of the ECHR (and which will be detailed below in section V(D)) could simply be set aside in the event of a diminution under the law of a Member State of the status of churches, religious associations and communities, or philosophical and non-confessional organisations, although the text of Article 17(1) and (2) TFEU, read in isolation, might suggest this to be the case.
92) In that event, both this Court and the Member State courts, pursuant to the obligations incumbent on them under Article 47 of the Charter and by virtue of Article 19 TEU and the duty it imposes on Member States to provide ‘remedies sufficient to ensure effective legal protection in the fields covered by Union law’, ( 88 ) would be bound, within the scope of application of EU law, to continue to enforce freedom of thought, conscience and religion, as provided for in Article 10 of the Charter, and indeed freedom of association under Article 12 of the Charter, ( 89 ) in conformity with EU fundamental rights, and the level of protection provided under the case-law of the European Court of Human Rights with respect to the autonomy of religious organisations. As mentioned in the written observations of the Commission, in ‘a European Union based on the rule of law, it is for the courts thereof to ensure compliance’ with EU law. ( 90 )
93) In other words, it would be a mistake, in my view, for Article 17(1) and (2) TFEU to be interpreted as some kind of meta principle of constitutional law ( 91 ) that binds the Union to respect the status under Member State law of churches, religious associations and communities, and philosophical and non-confessional organisations, whatever the circumstances. Such an approach would be inconsistent with other provisions of primary EU law, such as the mechanism provided in Article 7 TEU to deal with ‘a clear risk of a serious breach by a Member State’ of the values on which the EU is founded, as set out in Article 2 TEU. Account should also be taken of Article 10 TFEU and the EU’s aims in defining and implementing its policies and activities, and Articles 22 and 47 of the Charter, the former supporting pluralism and the latter reflecting the general principle of the right to an effective judicial remedy in the event of violation of the rights and freedoms guaranteed by EU law. This rule was incorporated into the corpus of EU fundamental rights in the first place through a dispute concerning breach of EU equal treatment law. ( 92 )
100) In conclusion, Article 17 TFEU illustrates that the EU’s constitutional imperatives reflect what one scholar has referred to as ‘value pluralism’. Pursuant to this, conflicts between differing rights, or approaches thereto, are considered to be normal and are resolved through balancing conflicting elements rather than according priority to one over another in a hierarchical fashion. ( 109 ) This is echoed in Article 2 TEU, Article 22 of the Charter, and Article 2(5) of Directive 2000/78.
104) In addition to laying the foundations for the answer to question 1, this analysis has identified the following factors, or requirements as they are referred to in question 3, that are relevant to whether occupational requirements concerning religion or belief, by reason of the nature of the activities or of the context in which they are carried out, are genuine, legitimate and justified, having regard to the organisation’s ethos:
105) Given that Articles 10 and 12 of the Charter ‘correspond’ to Articles 9 and 11 of the ECHR, within the meaning of Article 52(3) of the Charter, the right of religious organisations to self determination and autonomy encapsulates, at minimum, the following protection under EU law.
116) I therefore propose the following answer to the third question: ‘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:
119) However, I have come to the conclusion that the prohibition on discrimination based on religion or belief, as reflected in Article 21 of the Charter, is not a subjective right that has horizontal application between private parties in circumstances in which it is in competition with the right of religious organisations to autonomy and self-determination and Member State legal provisions cannot be interpreted in conformity with Article 4(2) of Directive 2000/78. ( 144 ) If this is what results from the main proceedings once they are returned to the national referring Court, the remedy available to the applicant under EU law would be an action in State liability for damages against Germany. ( 145 )
126) It is apparent from the fact that religious organisations in Germany employ around 1.3 million people ( 149 ) that there is considerable engagement in the public sphere by churches and their affiliates in that Member State. ( 150 ) I nevertheless take the view that the tensions generated by this situation, as exemplified by the main proceedings, have been accommodated through promulgation of Article 17 TFEU, Article 4(2) of Directive 2000/78, and acknowledgment of the right of religious organisations to autonomy and self-determination as a fundamental right that is protected under EU law, through the combined effects of Articles 10, 12, and 52(3) of the Charter.
127) I therefore propose the following answers to the questions referred by the Bundesarbeitsgericht (Federal Labour Court, Germany):
(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: