CJEU Case C-68/17 / Opinion
Key facts of the case:

Reference for a preliminary ruling — Directive 2000/78/EC — Equal treatment in employment and occupation — Occupational activities of churches — Occupational requirements — Duty of good faith and loyalty towards the ethos of the church — Difference of treatment based on faith — Dismissal of a Catholic worker, in a managerial role, because of a second marriage following divorce

Outcome of the case:

In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:

The second subparagraph of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it allows a religious organisation such as IR to require, from its employees of the same faith, an attitude of good faith and loyalty greater than that required from employees of a different faith or those with no faith at all, only to the extent that that requirement complies with the criteria stated in the first subparagraph of Article 4(2) of Directive 2000/78.

A national court hearing a dispute between two private parties is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from the general principle of non-discrimination on grounds of religion and to guarantee the full effectiveness of that principle by disapplying, if need be, any contrary provision of national law.
Paragraphs referring to EU Charter

82.) In its judgment of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257), the Court held that if, in a dispute between private parties, the referring court were required to hold that Article 9(1) of the AGG did not lend itself to an interpretation in line with Directive 2000/78, it would be required to ensure the judicial protection for individuals flowing from Articles 21 ( 28 ) and 47 ( 29 ) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and to guarantee the full effectiveness of those articles by disapplying, if need be, any contrary provision of national law. ( 30 )

83) That solution may perfectly well be transposed to the dispute in the main proceedings, which is also between private parties, although it does not fall within the scope of the Charter ratione temporis.

84) Indeed, in comparable situations dating from before the entry into force of the Charter, the Court applied the general principle of non-discrimination on grounds of age and held that it granted private persons an individual right that could be invoked as such in disputes between private persons and required national courts to set aside the application of national provisions not in line with that principle. ( 31 )