Ronan McCrea, Professor of Constitutional and European Law at University College London
The Framework Directive on Discrimination in Employment came into force in 2003 but it took 14 years for the Court of Justice to issue its first major decision on its religion-related provisions. However, we have now had four major decisions in the last year and a half so the precise impact of the Directive’s religion-related provisions is now becoming clear.
We now know that a consistently-applied neutrality requirement that prevents employees wearing symbols of religion or belief at work will be considered to be indirectly, not directly discriminatory (the Achbita case), that the court takes a narrow view of what counts as a genuine and determining occupational requirement justifying direct discrimination on religious grounds (Bougnaoui and Egenberger cases) and that the ability of religious employers to restrict roles to co-religionists in order to protect their ethos was subject to a proportionality test (the Egenberger case.) (On Achbita and Bougnaoui, see discussion here; on Egenberger, see previous discussion on this blog here)
The latest judgment, in the case of IR v JQ addressed the matter of discrimination on grounds of religion addressed by the Court in Egenberger, but also covered the final major outstanding issue in relation to the religion-related provisions of the Directive; the scope for those employers, termed organisations ‘the ethos of which is based on religion or belief’ by the Directive, to impose an obligation on their employees to behave with loyalty towards the religious ethos of their employer.
However, it did so in a slightly unusual way because in this case the employee in question contested the fact that he had been placed under a greater duty of loyalty to his employer’s ethos because he belonged to the same faith as his employers. In other words, he alleged that the obligation of loyalty had been applied to him in a discriminatory way rather than simply alleging that an excessive obligation had been imposed.
In this case the employee, ‘JQ’, was the head of internal medicine in a hospital run by ‘IR’. IR is a not-for-profit, Catholic organization that runs a number of organisations including hospitals as part of what the Court of Justice called ‘an expression of the life and nature of the Roman Catholic Church’. JQ is a Roman Catholic. He was married in a Roman Catholic ceremony but divorced in early 2008. He subsequently married a new partner in civil ceremony. When his employer became aware of this he was fired from his post in March 2009.
His former employer argued that the dismissal of JQ was justified because by remarrying, he had breached the duty (contained in his contract) to be loyal to the ethos of the Catholic Church. JQ argued that his dismissal amounted to impermissible discrimination on the basis that an employee who was not a Catholic would not have been fired for entering into a second marriage.
EU law does allow (but does not require) Member States maintain in force exemptions from the duty not to discriminate. Article 4(2) of the Directive states:
‘…. 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.’
The key issue in the reference was whether the scope of the exemption from the duty not to discriminate on grounds of religion or belief granted by German law to religious organisations was compatible with Directive 2000/78. JQ’s Catholic employers believed it necessary to place employees with managerial roles who shared their Catholic faith under a greater obligation of loyalty than that placed on non-Catholic employers. German law implementing Directive 2000/78 provides them with significant scope to do so. It provides that:
‘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.’(paragraph 9(2) of the Allgemeine Gleichbehandlungsgesetz,)
This legislation has been interpreted in the light of the German constitutional guarantee that states:
‘Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.’ (Grundgesetz Article 140).
The German courts have consistently taken the approach that, in the light of this constitutional guarantee of self-determination, religious institutions may decide in accordance with their own faith-defined self-perception what is necessary to fulfil their religious mission. This means that religious employers may themselves definitively determine (subject only to plausibility review by the courts) what constitutes acting ‘in good faith and with loyalty to the ethos of the organisation’ within the meaning of Article 4(2) of the Directive.
The litigation between JQ and IR spent several years moving between various levels of the German court system (including a hearing before the Bundesverfassungsgericht (Federal Constitutional Court) which did not refer the matter to the Court of Justice).
When it came before the Bundesarbeitsgericht (Federal Labour Court) for the second time, the court decided to make a reference to the Court of Justice under Article 267 in order to ascertain whether the broad scope granted by German law to religious employers to determine the scope of the duty of employees to be loyal to the employers’ ethos was compatible the provisions of Article 4(2) of the Directive. In particular, the national court wanted to know whether a religious employer of a particular faith was entitled to apply a more stringent duty of loyalty in respect of employees who are also members of the faith than is applied to those who are of a different religion or of no religion.
The Court found that German law provided excessive scope to religious employers in this regard. This was not surprising as the Court of Justice had recently come to the a similar conclusion in the Egenberger case where a non-religious woman had been denied a job in a Protestant foundation.
In that case, the Court of Justice ruled that a decision by a religious employer to discriminate against an individual on grounds of their religion must satisfy a proportionality test. This test included an obligation on the religious employer to show that discriminating on grounds of religion was necessary because of the importance of the job in question for ‘the manifestation of the religious body’s ethos or its right of autonomy’.
In addition, the Egenberger ruling stressed that the right to effective judicial protection under Article 47 of the Charter of Fundamental Rights meant that an employee claiming to be the victim of discrimination must be able to contest whether such discrimination complied with the tests of genuineness, necessity and justification before national courts. Compliance with such tests could not be decided definitively by the religious body itself, something which goes against the German approach of allowing the self-perception of the religious institution to determine this issue, subject only to plausibility review by the courts.
The Egenberger ruling therefore made it clear that discriminatory decisions by employers must be subject to objective justification, including compliance with a proportionality test (rather than the self-perception of the religious body) as well as being contestable before an independent court.
The key question in JQ v IR was whether the principles outlined in Egenberger by the Court of Justice for dealing with cases of less favourable treatment on grounds of religion in general, would also apply when the less favourable treatment related to the imposition of an obligation of loyalty towards the ethos of the employer. Unsurprisingly, the Court held that the same principles apply and held that where an employee has been accorded less favourable treatment on account of his religion (in this case by requiring greater loyalty to the employer’s Catholic ethos from Catholic employees), such discrimination must comply with a proportionality test and that compliance must be capable of being assessed by an independent court, not the religious body itself. It noted that the ability of employers to impose a duty ‘to act in good faith and with loyalty to organisation’s ethos’, provided by Article 4(2) is subject to the proviso that this duty can be imposed only ‘provided that [the Directive’s] provisions are otherwise complied with’.
This means that the lawfulness of a difference in treatment depends not on the self-perception of the employer but:
‘on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may arise either as a result of the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its evangelising mission, or of the circumstances in which the activity is to be carried out, for instance, where it is necessary to ensure that the church or organisation is presented in a credible fashion to the outside world’
In addition the difference in treatment must be shown to be genuine, legitimate and justified. In this regard, the Court reiterated its ruling in Egenberger that:
‘”genuine” means that professing the religion or belief on which the ethos of the church or organisation is founded 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, as recognised by Article 17 TFEU and Article 10 of the Charter’
‘”legitimate” shows that the EU legislature intended to ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy’
‘”justified” implies not only that a national court can review whether the criteria laid down in Article 4(2) of Directive 2000/78 are being complied with, but also that the church or organisation imposing the occupational requirement is obliged to show, in the light of the factual circumstances of the individual case, that the alleged risk of undermining its ethos or its right of autonomy is probable and substantial, so that the imposition of such a requirement is necessary’.
This means that the imposition of a greater duty of loyalty on Catholic employees only be justified if ‘bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief is a genuine, legitimate and justified occupational requirement in the light of that ethos’.
While it acknowledged that it was ultimately for the national court to reach a conclusion on the facts, the Court of Justice gave a strong steer to the national court noting that:
‘Adherence to that notion of marriage does not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, it does not appear to be a genuine requirement of that occupational activity within the meaning of the first subparagraph of Article 4(2) of Directive 2000/78’
‘that positions of medical responsibility entailing managerial duties, similar to that occupied by JQ, were entrusted to IR employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos’
The Court also confirmed the position it took in Egenberger that the acknowledgement in Article 17 of the Lisbon Treaty that the Union respects the status of churches and religious associations under national law merely ‘expresses the neutrality of the European Union towards the organisation by the Member States of their relations with churches and religious associations and communities, that article is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review’.
Giving Effect to the Ruling: Indirect Effect and Mangold Principles
The national court also asked a number of questions in relation to its ability to give effect to the Directive as interpreted by the Court of Justice. When making its reference, the national court indicated that it suspected, correctly as it turned out, that German law was inconsistent with the Directive. As this was a dispute between two private parties, vertical direct effect of the Directive per se was not available. In its ruling the Court of Justice took the opportunity to remind the national court that the obligation of consistent interpretation set out in Marleasing and subsequent cases, included an obligation to adapt established national case-law.
Interestingly, the Court ruled that even if it was not possible to interpret German law consistently with the directive, the national court could still give effect to Directive 2000/78 in this case by disapplying the relevant national law. In doing so it relied, as it had in Egenberger, on the controversial line of cases arising from the Mangold ruling in which the Court held that Directive 2000/78 merely codified a pre-existing EU legal obligation to respect the general principle of equal treatment which was not dependent on any implementing measures by the Member State. This obligation applied notwithstanding the fact that JQ had been fired before the Charter of Fundamental Rights came into force because the principle of equal treatment was already binding as it was a general principle of law arising from the common constitutional traditions of the Member State.
With four major rulings in 18 months, the outlines of the approach of the Court of Justice to the religion-related provisions of Directive 2000/78 are now reasonably clear, giving us a clearer picture of the approach of the Union to religion’s role in the legal system more generally.
First, it is clear that the Court is committed to an approach that involves balancing of clashing rights through the framework of proportionality. Under EU law there is a sliding scale of religious autonomy with decreasing autonomy for religious employers the more distant a role is from the core religious functions. Furthermore, any discriminatory decisions must be capable of being challenged in a meaningful way before the courts. Religious bodies cannot determine for themselves the degree of exemption from anti-discrimination rules necessary to protect their ethos.
This is in contrast to the approach of the US Supreme Court which has adopted an approach based on the idea of a ‘ministerial exemption’ under which the state has no right to assess decisions of religious bodies in relation to roles that have a religious element and indeed, to the approach of the European Court of Human Rights which upheld, in cases such as Fernández-Martínez v Spain, an arrangement under which the automatic termination of the contract of a religion teacher in a public school on foot of decision of a local bishop to withdraw his endorsement of that teacher was subject to very limited review. The commitment of the Court to proportionality as a means to resolves clashes in this area means that it is likely that, when it is faced with a case of the non-discriminatory application of an ethos-loyalty obligation to an employee, it will insist that such an obligation be limited in order to ensure that it does not have a disproportionate impact on other fundamental rights such as the right to privacy of freedom of expression.
Second, the Court is keen to limit its tolerance of policies that have potentially discriminatory implications on grounds of religion, to instances where the policy is consistently applied. Thus, in Achbita and Bougnaoui it stressed that neutrality policies would be considered indirectly rather than directly discriminatory only if consistently applied to all statement of all forms of religious, philosophical and political belief. Similarly, in JQ v IR it found fault in the fact that the loyalty obligation would not have been applied to a non-Catholic in JQ’s role. The Court has also made it clear that, as in Bougnaoui, in cases where a policy is shown to be directly discriminatory it will not give a wide interpretation to the concept of a ‘genuine and determining occupational requirement’. This approach also involves a commitment to treat religious and non-religious beliefs equally, something that sets EU law apart from approaches in many other areas of the world.
Finally, the Court regards the Treaty commitment in Article 17 to respect the status of religious bodies in national law not as a mandate to exempt the legal privileges of religious bodies from review for their compliance with EU legal norms but as a statement of the EU’s neutrality in relation to the different ways in which Member States organise their relations with churches and religious bodies.
Finally, for EU law more generally, recent religion cases have underscored the Court’s determination to persevere with its controversial approach of regarding Directive 2000/78 as doing no more than giving specific expression to an already self-executing general principle of non-discrimination in EU law.
Barnard and Peers: chapter 9, chapter 20
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