Discrimination based on religion or belief, religious employers
Facts:
Ms Egenberger had applied for a fixed-term post with an auxiliary of the Protestant Church in Germany. The job description required to be a member of one of the German Protestant Churches. Ms Egenberger who was of no denomination didn’t get the job.
The German courts had consistently taken the approach that, in the light of the constitutional guarantee of self-determination, religious organisations were allowed to determine for themselves whether a particular job could be reserved to those of a particular faith, subject only to plausibility review by the courts on the basis of the church’s self-perception.
Findings of court:
The Court noted that a balancing exercise needs to be taken between the autonomy rights of religious organisations and the right of workers to be free from discrimination. It ruled that in the event of a dispute it must be possible for the balancing exercise to be reviewed by a national court. They must decide on a case by case basis, whether the three criteria concerning a ‘genuine, legitimate and justified’ requirement are satisfied having regard to the nature of the occupational activity or the circumstances in which it is carried out. In addition, the Court of Justice relied on the Charter of Fundamental Rights and general principles of law to insert a requirement of proportionality into Art 4(2) of Directive 2000/78.
The Court then reaffirmed the duty of national courts to interpret national law in accordance with EU law or disapply national law where it is not possible to interpret it in conformity with Directive 2000/78. Because the EU Charter of Fundamental Rights is applicable, the national court must enforce the rights to non-discrimination and effective judicial protection enshrined, respectively, in Articles 21 and 47 of the Charter which are capable of producing horizontal direct effect.
Implications:
A genuine occupational requirement imposed to potential employees by religious organisations can be challenged to ensure that the requirement is genuine, legitimate and justifiable. In addition, the requirement must also pass a proportionality test.