Holy Orders or Higher Law? Praying for a Karlsruhe intervention

 

Jonas Siebold

Photo credit: ReinhardHauke, via Wikimedia commons

A lot is at stake for the Protestant Church in Germany. In the pending “Egenberger” case (2 BvR 934/19) before the German Federal Constitutional Court (FCC) in Karlsruhe, nothing less than the church’s right to self-determination itself is at issue. “Egenberger? Karlsruhe?” Wait a minute. Attentive European Union lawyers will certainly be familiar with this case. But first things first.

I. The Case

In 2012, Vera Egenberger applied for a position at a Protestant organisation (the Evangelisches Hilfswerk für Diakonie und Entwicklung). The job description required a church membership, which Egenberger did not have. Ultimately, she was not invited for an interview, while the candidate who got the post was a Protestant Christian. Ironically enough, the position was for bout producing a report on the elimination of discrimination.

Assuming that her application had been rejected because she did not belong to any denomination, Egenberger claimed compensation under Section 15 (2) of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). Nevertheless, Section 9 (1) of that Act allows for discrimination on religious grounds, if a religious requirement constitutes a justified occupational requirement, having regard to the self-perception of the religious society concerned, in view of its right of self-determination or because of the type of activity.

II. The Judgment

The German Federal Labour Court (Bundesarbeitsgericht), as court of last instance, referred several questions to the Court of Justice of the European Union (CJEU) as a preliminary reference. Questionable was the interpretation of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, which includes a requirement of equal treatment on grounds of religion (subject to exceptions).

In its judgment (Case C-414/16), the CJEU responded that religious communities invoking the necessity of religious affiliation for filling positions only align with Article 4 (2) of Directive 2000/78/EC (which sets out a specific ‘genuine occupational requirements’ ground of justification as regards religious discrimination) when there is an “objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned”. Whether this is the case is subject to effective review by national courts. The Federal Labour Court then carried out the interpretation required by EU law and concluded that religious affiliation was not necessary for the position to be filled.

III. The Complaint

With a constitutional complaint to Karlsruhe, the Protestant organisation now aims to ensure that the question of the necessity of religious affiliation for a church position may only be answered based on the church’s self-perception, without control by national courts. As the Federal Labour Court followed the CJEU’s preliminary ruling, its judgment is insofar determined by EU law. Although the constitutional complaint is directed against the Federal Labour Court’s final judgment, the complainant indirectly aims for more – a review of the CJEU’s judgment.

Is that even possible? In principle not, according to the primacy of EU law, established in the CJEU’s landmark decision Costa/E.N.E.L. from 1964. Six years later the CJEU explicitly clarified in Internationale Handelsgesellschaft that this even applies for national constitutional law. Furthermore, the CJEU is exclusively responsible for the interpretation and application of EU law, according to Article 19 TEU.

So why is the Protestant organisation now coming up with the apparently far-fetched idea of taking legal action before the FCC? Admittedly, one or two European Union lawyers and CJEU judges would certainly agree with this approach. However, Karlsruhe is less monotheistic than its Luxembourg colleagues when it comes to the principle of primacy of EU law. While it accepts the primacy of EU law, it does not accept it in the absolute terms set out by the CJEU.

IV. The National Court’s Control

Under admittedly strict requirements, Karlsruhe reserved for itself three reservations of control over the primacy of EU law. In exceptional cases it reviews whether the European Union level of fundamental rights protection generally shrinks to a level below that which essentially corresponds to the German (Solange II review). Furthermore, if EU institutions manifestly overstep their competences (ultra vires review) or pursuant to article 23 (1) 3 in conjunction with article 79 (3) of the Basic Law, the inviolable core of the national constitutional identity is affected (identity review).

Even if perhaps the dogmatic amount of reasoning seems unique, numerous Member States’ courts share the perspective of a merely relative primacy of EU law. Such an understanding is a test for the Union’s cohesion but bearable due to the utmost restraint in reviewing. For Germany, this is demanded and ensured by the Basic Law’s openness towards European Union Law.

V. The Argumentation

But let’s get back on track. Which review could be considered for our complainant? The level of European Union Fundamental Rights protection is arguably stronger than ever before, so realistically only the ultra vires or identity review seem possible.

The defendants claimed that the CJEU fails to respect the status of religious communities as guaranteed in Article 17 TFEU. This is arguably not correct, as primary law and the directive require a balance to be struck between the self-determination of religious communities, which is anchored in national law but also protected by EU law and protection against discrimination. But this is a question of the judgment’s compliance with EU law and not exceeding competences.

Then, is the church’s right to self-determination, as enshrined in article 140 of the Basic Law in conjunction with article 137 (2) of the German Constitution of 11 August 1919 (Weimar Constitution), part of the inviolable core of the national constitutional identity? In principle, this can be considered. But not in general for every individual case, particularly for less strictly ecclesiastical activities like in Egenberger. This would hardly align with Karlsruhe’s narrow understanding of the constitutional identity, including only the core of human dignity in fundamental rights and fundamental principles like democracy or the rule of law. Finally, it would unduly jeopardise the fundamental rights of job applicants and employees.

VI. Conclusion

Therefore, the odds for a Karlsruhe intervention seem small and due to the argumentation presented unconvincing. It would be surprising if, after the fiercely debated PSPP-judgment from May 2020, the FCC revolts against the CJEU again, in this case of all cases. But who knows, maybe the Protestants’ prayers will be heard in Karlsruhe.

A decision is scheduled for 2025.