Religion, employment and the Genuine Occupational Requirement: Egenberger

Advocate General Tanchev has today published his Opinion in the case of Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V. [2017] ECJ C-414/16.

Background

Ms Egenberger applied for a job advertised by the Evangelisches Werk für Diakonie und Entwicklung [EWDE], an auxiliary organisation of the Evangelische Kirche in Deutschland [EKD] which is governed by private law and exclusively pursues charitable, benevolent and religious purposes. The purpose of the job was to prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The duties included public and professional representation of the EWDE and coordinating the process of forming opinions within it.

Ms Egenberger was not appointed to the post. The advertisement stated that candidates should be members of a Protestant church or of a church which is a member of the Cooperative of Christian Churches in Germany and Ms Egenberger contends that she was not appointed because she does not belong to any religious community. She therefore lodged a claim with the German Labour Courts for payment of damages of around €10 000, arguing that she had been discriminated against on the basis of belief.

Questions referred

The Bundesarbeitsgericht (Federal Employment Court) submitted a series of questions to the Court of Justice, as follows:

“1. Is Article 4(2) of Directive 2000/78/EC [the Equal Treatment Directive] to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may 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. If the first question is answered in the negative:

In a case such as the present, is it 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?

3. If the first question is answered in the negative, further:

What requirements are there as regards the nature of the activities or of the context in which they are carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive 2000/78/EC?”

The Advocate General’s Opinion

AG Tanchev notes that church-related institutions, collectively, are reported to be the second-largest employer in Germany, employing around 1.3 million people, and occupy a quasi-monopolistic position in some regions and fields of work. He points out that the Equal Treatment Directive includes a specific rule to deal with the particular situation of the circumstances in which religious organisations can lawfully engage in unequal treatment on the basis of belief. The rule sets the parameters for the standard of judicial review to be applied when a religious organisation is challenged for having taken the position that unequal treatment on the basis of belief does not amount to unlawful discrimination: whether, by reason of the nature of the activities in question and the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

He suggests that the Court reply to the Bundesarbeitsgericht along the following lines:

First, he considers that an employer, such as the Evangelisches Werk für Diakonie und Entwicklung, 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 in question 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.

While judicial review of the ethos of the church is to be limited, this does not mean that a Member State court is to be excused from assessing the activities in question against the ethos of a religion, to determine whether a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement:

“I disagree with submissions made by the defendant that the prohibition on State authorities probing the legitimacy of religious beliefs or interfering with the internal organisation of religious bodies necessarily means that the latter are also the only entities, to the exclusion of courts, that can decide whether an occupational requirement is genuine, legitimate, and justified, having regard to the nature of the activities and the context in which they are carried out, under Article 4(2) of Directive 2000/78. Rather, I accept arguments … that the ethos of a religion is subjective, and quite separate and distinct from the activities entailed in sustaining it, the latter being an objective matter to be reviewed by courts. In other words, the defendant has conflated two different concepts. While judicial review of the ethos of the church is to be limited, as is reflected in the case-law of the European Court of Human Rights, and for that matter the constitutional traditions of the Member States, this does not mean that a Member State court is excused from assessing the activities in question, as against the, nearly unreviewable, ethos of a religion, to determine if unequal treatment on the basis of belief is genuine, legitimate and justified” [110: emphasis in original].

Secondly, he is of the opinion that the Bundesarbeitsgericht, in assessing whether adherence to a particular religion for given activities is a genuine, legitimate and justified occupational requirement, having regard to the nature of the activities or of the context in which they are carried out, along with the organisation’s ethos, is obliged to take account of the following considerations:

  • the right of religious organisations to autonomy and self-determination is a fundamental right that is recognised and protected under EU law. The Directive, and in particular its reference to the ‘ethos’ of religious organisations, is to be interpreted in conformity with this fundamental right;
  • Member States have a wide but not unlimited margin of appreciation with respect to occupational activities for which religion or belief amounts to genuine, legitimate and justified occupational requirements, by reason of the nature of the activities and the context in which they are carried out;
  • the Directive is to be implemented in such a way that the model selected by the 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;
  • the word ‘justified’ in the Directive requires analysis of whether occupational requirements entailing direct discrimination on the grounds of religion or belief are appropriately adapted to protect the right of the EWDE to autonomy and self-determination, in the sense that they are suitable for the purpose of attaining this objective;
  • the words ‘genuine, legitimate’ in the Directive require analysis of the proximity of the activities in question to the proclamatory mission of the EWDE;
  • 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 is to be weighed against the right of the EWDE to its autonomy and self-determination, with due account taken of the fact that the Directive makes no distinction between recruitment and dismissal.

Thirdly, he observes that the case concerns a dispute between two private parties, which means that national courts are bound to do everything within their powers to interpret the relevant national law in conformity with the Directive. However, if it is impossible for the national court to do so because of a clear conflict between the Directive and the relevant provisions of national law, that obligation ceases to apply.

Therefore, if the Bundesarbeitsgericht were to come to the conclusion that the German law at issue cannot be interpreted in conformity with the prohibition contained in the Directive on discrimination on the basis of belief, the remedy available to Ms Egenberger under EU law would be an action in State liability for damages against Germany. That is because the prohibition on discrimination based on religion or belief as reflected in the Charter of Fundamental Rights of the European Union, is not, in his opinion, a subjective right that has horizontal application between private parties in a situation in which it is in competition with the right of religious organisations to autonomy and self-determination.

It should be remembered that the AG’s Opinion is not binding on the Court.

[Prepared from the Curia press-release]

Cite this article as: Frank Cranmer, "Religion, employment and the Genuine Occupational Requirement: Egenberger" in Law & Religion UK, 9 November 2017, http://www.lawandreligionuk.com/2017/11/09/religion-employment-and-the-genuine-occupational-requirement-egenberger/

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