Salvation Exterior The Church? The Ecj Rules On Religious Discrimination Inwards Apply

Dr Ronan McCrea, Senior Lecturer inwards Law, University College London

Background

The Court of Justice has issued its firstly major ruling on the reconciliation of the autonomy rights of religious organisations alongside the correct of employees (or potential employees) of such organisations to locomote gratis of discrimination.

In 2012 Vera Egenberger applied for a fixed term post advertised past times the Evangelisches Werk für Diakonie und Entwicklung, which is a torso associated alongside the Evangelische Kirche inwards Deutschland (a High German Protestant church). The post advertised sought a someone who could prepare a study on Germany’s compliance alongside the UN International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had pregnant sense inwards this surface area together with applied for the post. However, at that topographic point was a problem. Ms. Egenberger is a someone who does non receive got a religious faith together with the relevant lift included the next statement:

‘We require membership of a Protestant church, or of a church building which is a fellow member of the Arbeitsgemeinschaft Christlicher Kirchen inwards Deutschland (Cooperative of Christian Churches inwards Germany), together with identification alongside the welfare mission. Please dry reason your membership inwards your curriculum vitae.’

Ms. Egenberger was non called for interview. She took a representative inwards the High German courts alleging discrimination on grounds of religion.

As discrimination inwards work on grounds of faith is regulated past times European Union law, inwards the shape of Directive 2000/78 (which also bans discrimination on grounds of disability, historic menstruum or sexual orientation inwards employment), when the representative came before the Bundesarbeitsgericht (Federal Labour Court) it decided to brand a reference to the Court of Justice to clarify the interpretation of European Union law. The key number inwards the reference was whether the range of the exemption from the duty non to discriminate on grounds of faith or belief granted past times High German police describe to religious organisations was compatible alongside Directive 2000/78.

The number of exemptions from the prohibition on discrimination on grounds of faith for religious employers is addressed past times Article 4(2) of the Directive which states:

‘…. inwards the representative of occupational activities inside churches together with other world or private organisations the ethos of which is based on faith or belief, a departure of handling based on a person's faith or belief shall non constitute discrimination where, past times argue of the nature of these activities or of the context inwards which they are carried out, a person's faith or belief constitute a genuine, legitimate together with justified occupational requirement, having regard to the organisation's ethos. This departure of handling shall locomote implemented taking business organisation human relationship of Member States' constitutional provisions together with principles, equally good equally the full general principles of Community law, together with should non justify discrimination on to a greater extent than or less other ground.’ (emphasis added).

The relevant High German police describe implementing the directive provided that:

‘….a departure inwards handling based on faith or belief shall also locomote admitted inwards the representative of work past times religious societies, past times institutions affiliated therewith, regardless of legal form, or past times associations whose purpose is to foster a faith or belief inwards the community, where a given faith or belief constitutes a justified occupational requirement, having regard to the employer’s ain perception, inwards sentiment of the employer’s correct of autonomy or past times argue of the nature of its activities.’ (paragraph 9(1) of the Allgemeine Gleichbehandlungsgesetz, emphasis added).

This legislation, has been interpreted inwards the lite of the High German constitutional guarantee that states:

‘Religious societies shall regulate together with administer their affairs independently inside the limits of the police describe that applies to all. They shall confer their offices without the involvement of cardinal authorities or local authorities.’ (Grundgesetz Article 140).

This has meant that the consistent approach of the High German courts has been that the determination equally to whether a item role inside a religious organisation needs to locomote limited to those of a item faith was for the religious employer to take. The role of the courts has been limited to plausibility review, on the footing of a religion’s self-conception defined past times belief.

The national courtroom harboured doubts equally to whether the approach of High German police describe inwards allowing the religious employer to determine for itself, dependent champaign alone to plausibility review past times the courts, whether its beliefs required a item role to locomote reserved to those of a item faith, was compatible alongside the directive together with thence made a reference to the Court of Justice nether Article 267.

The Ruling: H5N1 More Balanced Approach Needed

The Court of Justice’s ruling made it clear that High German police describe had gone also far past times allowing such a broad range for religious employers to determine for themselves whether a item labor could locomote reserved to those of a item faith.

It noted that Article 4(2) of the Directive allowed the discrimination on grounds of faith alone if having regard to the nature of the action concerned or the context inwards which it is carried out, ‘religion or belief constitute[s] a genuine, legitimate together with justified occupational requirement, having regard to the organisation’s ethos’ together with concluded that:

‘if review of compliance alongside those criteria were, inwards the trial of uncertainty equally to that compliance, the labor non of an independent authorisation such equally a national courtroom but of the church building or organisation intending to do a departure of handling on grounds of faith or belief, [this provision of the Directive] would locomote deprived of effect.’

Interestingly, although the employer had cited both the guarantee of liberty of faith or belief (Article 10 of the Charter of Fundamental Rights) together with Article 17 of the Treaty on the Functioning of the European Union, which provides that the Union ‘The Union respects together with does non prejudice the status nether national police describe of churches together with religious associations or communities inwards the Member States’, the Court also relied heavily on constitutional principles to bolster its conclusion that excessive leeway had been granted to religious employers past times High German law.

The Court noted that Directive 2000/78 was simply a ‘specific expression, inwards the champaign covered past times it, of the full general prohibition of discrimination set downwards inwards Article 21 of the Charter’ (which sets out a full general ban on discrimination). It also noted that that when an private establishes before a national courtroom facts from which it may locomote presumed that at that topographic point has been direct or indirect discrimination then, nether Article 10 of the Directive, it is for the respondent to bear witness that at that topographic point has been no breach of that principle. Thus, the demand nether Article 47 of the Charter to furnish effective judicial protection of European Union police describe rights meant that restricting the powerfulness of the national courts to review the determination of an employer to impose a discriminatory requirement would locomote opposite to European Union law.

Next, the Court held that the objective of Article 4(2) of the Directive was to ensure “a fair balance” betwixt the autonomy rights of religious organisations together with the correct of workers to locomote gratis from discrimination. The Directive “sets out the criteria to locomote taken into business organisation human relationship inwards the balancing exercise” together with inwards the trial of a dispute it must locomote possible for the balancing exercise to locomote reviewed past times a national court. For the Court, the commitment to respecting the status of religious organisations inwards Article 17 of the Treaty could non modify this conclusion.

That article’s component was:

‘to limited the neutrality of the European Union towards the organisation past times the Member States of their relations alongside churches together with religious associations together with communities […] [and] is non such equally to exempt compliance alongside the criteria set about inwards Article 4(2) of Directive 2000/78 from effective judicial review.’

Guidance on the Test to Be Applied

Having found that the High German legislation was non compatible alongside the Directive the Court together with so had to address 2 farther interesting issues. First, it had to give guidance to the national courtroom on the interrogation of how the ‘fair balancing’ ought to locomote carried out together with and so it had to propose on how to implement the consequences of its finding inwards the case.

In relation to how to send out the ‘fair balancing’ the Court had to walk a tightrope. It acknowledged that nether ECHR representative law, states are precluded from assessing the legitimacy of the beliefs of a religious organization. However, it also had to ensure that the imposition of an occupational requirement relating to faith or belief was, inwards the words of the Directive ‘genuine, legitimate together with justified, having regard to [the] ethos [of the religious employer]’. Thus it had to determine how to recognize the necessarily subjective requirements of the ethos of the employer, alongside the seemingly objective requirements of the ‘genuine, legitimate together with justified’ test.

The Court adopted an approach that is significantly to a greater extent than objective than the approach taken inwards High German law. It set about a exam nether which religious organisations must exhibit an ’objectively verifiable existence of a direct link betwixt the occupational requirement imposed past times the employer together with the action concerned.’ Thus, inwards gild to run into Article 4(2)’s requirements that the departure inwards handling on grounds of faith locomote ‘genuine, legitimate together with justified’ the Court held that:

‘To locomote considered ‘genuine’: ‘professing the faith or belief on which the ethos of the church building or organisation is founded must seem necessary because of the importance of the occupational action inwards interrogation for the manifestation of that ethos or the exercise past times the church building or organisation of its correct of autonomy.’

To locomote considered ‘legitimate’ it found that the national courtroom must ‘ensure that the requirement of professing the faith or belief on which the ethos of the church building or organisation is founded is non used to pursue an aim that has no connectedness alongside that ethos or alongside the exercise past times the church building or organisation of its correct of autonomy.’

And to locomote considered justified the CJEU set downwards that ‘the church building or organisation imposing the requirement is obliged to show, inwards the lite of the factual circumstances of the case, that the supposed direct chances of causing price to its ethos or to its correct of autonomy is in all likelihood together with substantial, so that imposing such a requirement is indeed necessary.’

Finally, although a proportionality requirement is non included inwards the text of Article 4(2) (and is included inwards other Articles of the Directive), the Court held that equally proportionality is a full general regulation of European Union law, the exemption given past times Article 4(2) is to locomote read equally existence dependent champaign to a proportionality requirement.

Applying the Ruling

Given the possibility of a clash betwixt High German police describe together with the requirements of the Directive the High German courtroom asked for guidance on how it should locomote on if it proved impossible to translate domestic police describe so equally to comply alongside the Directive (bearing inwards hear the contra legem exception inwards the Marleasing line of case-law on the indirect effect of Directives; ie a national courtroom cannot locomote required to translate national police describe consistently alongside a Directive to the extent of ignoring the limited wording of national law).

The Court seemed to uncertainty that an interpretation consistent alongside European Union police describe was impossible, noting that the duty to translate national police describe consistently alongside European Union police describe included a duty for national courts ‘to modify their established case-law where necessary’ (referring to the DI judgment on historic menstruum discrimination, discussed here). However, it went on to say that should consistent interpretation bear witness impossible together with so the Court should disapply national police describe together with give effect to the relevant European Union police describe rights itself.

It justified this seat on the footing that Directive 2000/78 did non found the correct to equal treatment. Rather it sets out a framework for combatting discrimination on diverse grounds. The correct to equal handling is, the Court held, a full general regulation of police describe together with is enshrined inwards Article 21 of the Charter. Given that Article 47 of the Charter requires that adequate judicial protection locomote given to such rights, national courts receive got to ensure ‘the judicial protection deriving for individuals from Articles 21 together with 47 of the Charter together with to guarantee the total effectiveness of those articles past times disapplying if demand locomote whatever opposite provision of national law.’ This develops before representative police describe on the number of when the Charter itself does (and does not) receive got direct effect, inwards item the AMS representative discussed here; together with it confirms the UK of Britain together with Northern Republic of Ireland representative police describe on the direct effect of Article 47 (Vidal-Hall together with Benkharbouche, discussed here together with here).

Conclusion

The Court of Justice has given a notably constitutionalized interpretation of the Directive inwards this case. It has relied on the Charter together with full general principles of police describe to read a proportionality exam into Article 4(2) that did non seem inwards the text. It has insisted on proportionality equally the framework inside which the ‘fair balancing’ of the autonomy rights of religious employers together with equal handling rights of employees must receive got place.

This approach is inwards tension alongside recent trends inwards the caselaw of the Strasbourg Court. In cases such as Fernandez Martinez v Spain, the Court of Human Rights had moved away somewhat from the balancing of rights seen inwards its before caselaw together with had moved closer to the ‘ministerial exemption’ model used inwards the United States, nether which religious organisations receive got an absolute exemption from non-discrimination laws inwards observe of roles that include religious functions. Given the strong emphasis placed on proportionality past times the European Union legal order, unsurprisingly, inwards Egenberger, the Court of Justice has clearly come upwards downwards inwards favour of the balancing approach (see R. McCrea “Singing from the Same Hymn Sheet? What the Differences betwixt the Strasbourg together with Grand Duchy of Luxembourg Courts Tell Us almost Religious Freedom, Non-Discrimination together with the Secular State” Oxford Journal of Law together with Religion (2016) 5(2) 183-210, 198-99).

The Court’s insistence that European Union non-discrimination police describe simply codifies a self-executing (and horizontally direct effective) constitutional full general regulation of non-discrimination police describe represents a continuation of the controversial line of cases showtime inwards Mangold which has attracted pregnant criticism, including from national courts given the potential for legal uncertainty that such an approach involves. Here, the Court of Justice has made it clear that the EU’s constitutional commitment to proportionality way that religious bodies may alone impose discriminatory weather on employees when it is proportionate to create so together with national courts must locomote empowered to ensure religious employers create non exercise their correct to discriminate inwards a disproportionate way.

This is inwards tension alongside the approach adopted past times the High German legislature which, inwards the lite of High German constitutional guarantees of religious autonomy, gave real restricted powers to the courts to instant gauge the decisions of religious bodies inwards this way. Given that European Union together with High German constitutional norms seem to locomote inwards tension alongside each other inwards this way it volition locomote interesting to consider how this ruling is applied past times the national court. The High German constitutional provisions on religious autonomy larn all the way dorsum to the Weimar constitution together with are taken real seriously, though it may locomote an exaggeration to sentiment them equally constituting the sort of center ‘constitutional identity’ that mightiness trigger a refusal past times the High German courts to give primacy to European Union law.

Barnard & Peers: chapter 9, chapter 20

Photo credit: Wikimedia Commons

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