(Oct. 3, 2018) On September 11, 2018, the European Court of Justice (ECJ) held that dismissing a Catholic employee in a managerial position at a Catholic hospital for remarrying in a civil ceremony could constitute discrimination. According to the Court, religion or belief must be a genuine, legitimate, and justified occupational requirement in light of the “ethos” in question to justify a dismissal under the Equal Treatment Directive. This requirement must be subject to judicial review. Whether this condition is satisfied is up to the national court to determine. According to the opinion of the ECJ, however, it does not appear to be a genuine and justified requirement in the case at issue. (Case C‑68/17, IR v. JQ, Sept. 11, 2018, ECLI:EU:C:2018:696, InfoCuria website; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation (Equal Treatment Directive), 2000 O.J. (L 303) 16, EUR-Lex website.)
Facts of the Case
The plaintiff JQ, a Roman Catholic, had been employed since 2000 as the Head of the Internal Medicine Department of a hospital managed by the defendant IR, a limited liability company established under German law. (Case C 68/17, at 23 & 24.) IR’s purpose is to carry out the work of Caritas, the international confederation of Catholic charitable organizations. (Id. at 23.) IR is subject to the supervision of the Archbishop of Cologne, Germany. (Id.)
JQ had divorced his first wife, whom he had married in the Roman Catholic Church, and married his second wife in a civil ceremony. The Roman Catholic Church had not annulled his first marriage, making the second marriage invalid according to Roman Catholic doctrine. (Id. at 25.) The defendant IR considered the second marriage an infringement of the duty of loyalty that the plaintiff owed to the defendant under his contract of employment and consequently dismissed him. (Id. at 26 & 28.) The plaintiff JQ contended that his dismissal constituted an infringement of the principle of equal treatment, because the Basic Regulations on Employment Relationships in the Service of the Church, which are incorporated in his employment contract, provide that the remarriage of a head of department of the Protestant faith or of no faith would not result in a dismissal. (Id. at 27.)
JQ challenged his dismissal as socially unjustified before the German Labor Courts. The court of first instance as well as the appeals court ruled in favor of the plaintiff. (Id. at 27 & 29.) The Federal Labor Court (Bundesarbeitsgericht, BAG), the court of last instance for labor law issues, stayed the proceedings and asked the ECJ for an interpretation of article 4, paragraph 2 of the Equal Treatment Directive, which is implemented in section 9 of the German General Law on Equal Treatment. (Id. at 31 & 37.) It asked in particular whether the Catholic Church can decide with binding effect that an organization such as the defendant can subject employees in managerial positions to a requirement to act in good faith and with loyalty when the requirement differs according to the faith or lack of faith of such employees and, if that is not the case, what criteria are to be used. (Id. at 37.)
Article 4, paragraph 2 of the Equal Treatment Directive provides that
Member States may maintain national legislation … or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
Section 9 of the German General Law on Equal Treatment, which implements article 4 of the Equal Treatment Directive, states as follows:
- Without prejudice to Paragraph 8 [of this law], a difference of treatment on grounds of religion or belief in connection with employment by religious communities, institutions affiliated to them, regardless of their legal form, or associations that devote themselves to the communal nurture of a religion or belief shall also be permitted if a particular religion or belief constitutes a justified occupational requirement, having regard to the self-perception of the religious society or association concerned, in view of its right of self-determination, or the nature of the activities engaged in.
- The prohibition of a difference of treatment on grounds of religion or belief shall not affect the right of the religious communities mentioned in subparagraph 1, institutions affiliated to them, regardless of their legal form, or associations that devote themselves to the communal nurture of a religion or belief, to require their employees to act in good faith and with loyalty in accordance with their self-perception.
Article 140 of the German Basic Law incorporates articles 136–139 and article 141 of the former Weimar Constitution (WRV) on religion and religious societies into the German Basic Law. Article 137 of the WRV provides that there is no state church and that religious societies regulate and administer their affairs independently (right to self-determination). (GRUNDGESETZ [GG] [BASIC LAW] (May 23, 1949), BGBl. I at 1, as amended, German Laws Online website.) According to the German Federal Constitutional Court, the churches’ right to self-determination extends to “all institutions specifically affiliated to them, if and to the extent that they are required, in accordance with the church’s faith-defined self-perception and with their own purpose or mission, to undertake and fulfil the church’s mandate and mission.” (Case C‑68/17, at 12; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 4, 1985, 70 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] [Decisions of the Federal Constitutional Court] 138, para. 56 (Ger.).)
Article 4 of the Basic Regulations on Employment Relationships in the Service of the Church (GrO 1993) provides as follows:
- Catholic employees are expected to recognize and observe the principles of Catholic doctrinal and moral teaching. In pastoral, catechetical and educational work in particular, as well as among employees who are working on the basis of a missio canonica [canonical mission], employees shall conduct themselves in a manner consistent with the principles of Catholic doctrinal and moral teaching. This also applies to employees performing managerial duties.
- Non-Catholic Christian employees shall be expected to respect the truths and values of the Gospel and to contribute to giving them effect within the organization.
Article 5 of the GrO 1993 states the following:
- If an employee no longer complies with the requirements for employment, the employer shall attempt to counsel the employee to remedy this shortcoming on a lasting basis. … Dismissal shall be considered as a last resort.
- For dismissal on grounds relating specifically to the Church, the following breaches of the duty of loyalty in particular shall be regarded by the Church as serious:
. . . .
2. For catholic employees
. . . .
(c) entering into a civil marriage that is invalid according to the Church’s teachings and its legal system …
. . . .
3. In the case of [employees] occupying managerial posts, conduct generally considered to be a possible ground for dismissal in accordance with paragraph 2 shall rule out any possibility of continued employment. …
(Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse [GrO 1993] [Basic Regulations on Employment Relationships in the Service of the Church], Sept. 22, 1993, AMTSBLATT DES ERZBISTUMS KÖLN [OFFICIAL JOURNAL OF THE ARCHDIOCESE OF COLOGNE] 1993, at 222, repromulgated in AMTSBLATT DES ERZBISTUMS KÖLN 2015, at 146 (citations omitted).)
The ECJ recalled its ruling in an earlier case that if a church asserts that because 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, such an assertion must be subject to effective judicial review. (Case C‑68/17, at 43 (citing Case C 414/16, Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, Apr. 17, 2018, ECLI:EU:C:2018:257, at 55, InfoCuria website).) The ECJ found that the same reasons in support of a requirement for effective judicial review apply in the case at issue. (Case C‑68/17, at 44.)
It stated that the national court must review whether such an occupational requirement is in fact genuine, legitimate, and justified. “Genuine” means that religion “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.” (Id. at 51.) A requirement is “legitimate” when it is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organization of its right of autonomy. (Id. at 52.) Finally, the ECJ held that “justified” means that the church can show that there is a probable and substantial risk that its ethos or autonomy are undermined if such an occupational requirement is not imposed. (Id. at 53.)
The ECJ stated that it is ultimately up to the national court to determine if these requirements are fulfilled, but the ECJ could nonetheless provide guidance. (Id. at 56.) It concluded that in the present case, it appears that these requirements are not fulfilled, because upholding “the sacred and indissoluble nature of religious marriage” does not seem to be necessary to provide medical advice and care and head an internal medicine department. (Id. at 57 & 58.) In the Court’s view, this finding is corroborated by the fact that Catholic employees in managerial positions are subjected to a different standard of good faith and loyalty than employees in managerial positions who are of a different faith or of no faith. (Id. at 59.)
In addition, the ECJ held that the occupational requirement does not seem to be justified. However, as with the previous requirement, it is ultimately up to the national court to verify whether the defendant has shown that there is a probable and substantial risk to its ethos or autonomy without it. (Id. at 60.)
Finally, the ECJ recalled that a national court must interpret the national law, in this case the German General Law on Equal Treatment, in a manner consistent with the EU Equal Treatment Directive as interpreted by the ECJ and, if necessary, change established national case law. (Id. at 63 & 64.) It stated that the prohibition of all discrimination on grounds of religion or belief is a mandatory general principle of EU law, codified in article 21 of the Charter of Fundamental Rights of the European Union. In the opinion of the Court, this principle confers on individuals “a right that they may actually rely on in disputes between them in a field covered by EU law.” (Id. at 69.) The Court concluded that if an interpretation of the national law consistent with EU law is not possible, the national court must disapply the national law. (Id. at 70; Charter of Fundamental Rights of the European Union art. 21, 2007 O.J. (C 303) 1, EUR-Lex website.)