Case C-414/16, Egenberger – bigotry seeks law's blessing [judgment 2018, ECLI:EU:C:2018:257]
May a church decide for itself — bindingly, beyond the reach of the courts — that a job it advertises requires the right religion?
Facts
Vera Egenberger, who belongs to no denomination, applied for a fixed-term post advertised by Evangelisches Werk für Diakonie und Entwicklung, the social-action agency of the Protestant Church in Germany. The work: drafting a report on Germany’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination. The advertisement required membership of a Protestant or ecumenically affiliated church. Ms Egenberger was not invited to interview and sued for discrimination on grounds of religion. German law — Paragraph 9(1) of the AGG — let religious employers define their own occupational requirements by reference to their self-conception. The Bundesarbeitsgericht asked Luxembourg whether that self-certification is compatible with Directive 2000/78.
Questions Referred
According to the Official Journal notice, the Bundesarbeitsgericht asked:
1. Is Article 4(2) of Directive 2000/78/EC 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?
Judgment
On 17 April 2018 the Grand Chamber answered all three. The operative part reads:
(1) Article 4(2) of Council Directive 2000/78/EC …, read in conjunction with Articles 9 and 10 of the directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a church or other organisation whose ethos is based on religion or belief asserts, in support of an act or decision such as the rejection of an application for employment with it, that by reason of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be the subject, if need be, of effective judicial review by which it can be ensured that the criteria set out in Article 4(2) of that directive are satisfied in the particular case.
(2) Article 4(2) of Directive 2000/78 must be interpreted as meaning that the genuine, legitimate and justified occupational requirement it refers to is a requirement that is necessary and objectively dictated, having regard to the ethos of the church or organisation concerned, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organisation. That requirement must comply with the principle of proportionality.
(3) 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 conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter of Fundamental Rights of the European Union and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.
Outcome. By Grand Chamber judgment of 17 April 2018 (ECLI:EU:C:2018:257) the Court held that a church’s assertion that religion is a genuine, legitimate and justified occupational requirement must be subject to effective judicial review; that the requirement must be necessary, objectively dictated by the activity and proportionate; and that Articles 21 and 47 of the Charter apply in disputes between individuals, requiring national courts to disapply conflicting national law.
Sources
Judgment on EUR‑Lex (CELEX 62016CJ0414) · Case file on CURIA · OJ notice (CELEX 62016CN0414) · Directive 2000/78/EC
Comment
Egenberger did two big things at once. It ended judicial deference to religious self-certification: a church may still require religion for a post, but the requirement must be necessary, objectively dictated by the job, connected to the ethos, and proportionate — and a court, not the church, has the last word on whether that test is met. And it made constitutional law: the prohibition of discrimination in Article 21 of the Charter and the right to effective judicial protection in Article 47 apply horizontally, between private parties, with national law disapplied where it stands in the way — the boldest step in the line this site has tracked since AMS declined to give Article 27 the same force. Read together with Bougnaoui and the head-physician sequel in Case C‑68/17, IR v JQ, it defines how far religious employers’ autonomy reaches in EU employment law. On remand, the Bundesarbeitsgericht ruled for Ms Egenberger.