Article 10 - Freedom of thought, conscience and religion
Article 21 - Non-discrimination
Key facts of the case:
(Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment — Occupational activities within churches and other organisations the ethos of which is based on religion or belief — Occupational requirements — Acting in good faith and with loyalty to the ethos of the church or organisation — Definition — Difference of treatment on the basis of religion or belief — Dismissal of an employee of the Catholic faith performing managerial duties due to a second, civil marriage entered into after a divorce
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
35) The referring court is uncertain whether the prohibition of discrimination on grounds of religion or belief enshrined in Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) confers an individual right on a person that can be enforced by that person before the national courts and which, in disputes between private individuals, requires those courts not to apply national provisions that are incompatible with that prohibition. While it is aware that the Charter entered into force only on 1 December 2009 and the dismissal at issue in the main proceedings occurred in March 2009, the referring court notes that it is arguable that, prior to the entry into force of the Charter, a prohibition of all discrimination on grounds of religion or belief already existed as a general principle of EU law. In accordance with the principle of the primacy of EU law, that law takes precedence over national law, including constitutional law.
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45) The reasons given by the Court in support of that requirement for effective judicial review, which are based on the objective of Directive 2000/78, on the context of Article 4(2), on the safeguards required from Member States, in Article 9 and 10 thereof, in order to ensure that the duties arising under that directive are complied with and the persons who consider themselves to be victims of discrimination are protected, and on the right to effective judicial protection enshrined in Article 47 of the Charter (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 47 to 49) similarly apply in circumstances, such as those in the main proceedings, where a private organisation claims, in support of a decision to dismiss one of its employees, that the latter failed to act in good faith and with loyalty to the ethos of that organisation, within the meaning of the second subparagraph of Article 4(2) of the directive.
51) More specifically, with respect to the three criteria laid down in the first subparagraph of Article 4(2) of Directive 2000/78, the Court has stated, first of all, that the use of the adjective ‘genuine’ means that professing the religion or belief on which the ethos of the church or organisation is founded must be necessary because of the importance of the occupational activity in question for the promotion of that ethos or the exercise by the church or organisation of its right of autonomy, as recognised by Article 17 TFEU and Article 10 of the Charter (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 50 and 65).
69) Before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal status as the treaties, that principle derived from the common constitutional traditions of the Member States. The prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is therefore a mandatory general principle of EU law and is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76).
71) In the light of the foregoing considerations, the answer to the first part of the second question is that a national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in a manner that is consistent with Article 4(2) of Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from the general principles of EU law, such as the principle prohibiting discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, and to guarantee the full effectiveness of the rights that flow from those principles, by disapplying, if need be, any contrary provision of national law.
72) Since these proceedings are, for the parties to the main proceedings, a step in the action before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
